i 


4< 


AT   LOS  ANGELES 


ROBERT  ERNEST  COWAN 


THE  IRRIGpON  LAWS  OF  C/^LIFORNIA, 


OPINION  AS  TO  THE  SCOPE  AND  EFFECT 


OF 


JUDGE     ROSS'     DECISION 


IN    THE 


FALLBROOK   CASE, 


BY 


HON.     JAAIES     f\.     VA/AV/V\IR 

or    THE    SAN     FKANCISCO    BAR, 

Ex- Judge  of  the  Superior  Court. 


•  •     •      .*    •  V     •  *.  '   •     ' '  • 


^ 

• 


"     •    ♦  •      » 


*  c   «      1. 


OPINION 


OF 


HUN.  JAMES  A.  WAYMIRE 


AS   TO   THE 


Decision   of  Judge    Ross 

IN   THU 

FALLBROOK     CASE. 


I  am  requested  to  express  an  opinion  in  reply 
to  the  following  questions: 

1.  What  was  decided  by  Judge  Ross  in  the 
case  of  Brad  ley  ct  a/,  vs.  Fall  brook  Irrigation 
Districl  J' 

2.  What  is  the  legal  effect  of  such  decision 
upon  the  bonds  issued  by  irrigation  districts? 

3.  Do  the  decisions  of  the  Supreme  Court  of 
the  United  States  and  other  authorities  indicate 
that  Judge  Ross  will  be  sustained  ? 

In  the  case  referred  to,  tlie  complainants  filed 
a  bill  in  equity,  representing  themselves  to  be 
the  subjects  of  the  kingdom  of  Great  liritain, 
anrl  seeking  to  (|ni(.t  title  to  certain  lands 
claimed    by  them  within    tlu-  district    as   ag.ainst 


an  alleged  cloud  arising  by  reason  of  a  threat- 
ened sale  for  a  delinquent  assessment  levied  b}'- 
the  directors  of  the  district ;  also  to  enjoin  the 
execution  of  a  deed  by  the  collector  pursuant  to 
such  sale,  and  also  to  have  adjudged  void  certain 
bonds  proposed  to  be  issued  by  the  directors. 

The  bill  sets  out  the  proceedings  for  the  for- 
mation of  the  district,  including  the  presentation 
of  the  petition  to  the  Supervisors  of  the  county, 
which  the  law  requires  to  be  signed  by  "  fifty  or  a 
majority  of  those  holding  title  or  evidence  of 
title  to  the  lands  within  the  proposed  district." 
It  concedes  the  regularity  of  the  proceedings 
under  the  statute,  but  avers  that  the  statute 
itself  is  void  because  in  conflict  with  the  Four- 
teenth Amendment  to  the  Constitution  of  the 
United  States,  in  that  it  attempts  to  deprive 
landowners  of  their  property  without  due  pro- 
cess of  law  ;  alleges  that  the  Supreme  Court  of  the 
State  has  declared  the  act  valid,  aud,  as  the  deed 
in  question  is  by  the  statute  made  conclusive 
evidence  of  title,  it  will  create  a  cloud  upon  the 
land  of  the  complainants. 

The  defendants  demurred  to  the  sufficiency  of 
the  bill ;  the  Court  overrules  the  demurrer  and 
gives  leave  to  answer.  I  understand  an  answer 
has  been  prepared  and  that  a  trial  will  be  had  im- 
mediately, so  that  final  judgment  can  be  entered 
and  an  appeal  taken  to  the  Supreme  Court  of  the 


12^^ 


o 
O 


United    States    in    time    for    the    next    October 
term. 

The  case  was  not  argned  orall}-  before  Jndge 
Ross,  but  was  submitted  upon  printed  briefs,  of 
which  there  were  two  very  elaborate  ones  filed 
on  behalf  of  the  complainants  and  a  short 
one  on  behalf  of  the  defendants.  I  have  read 
the  briefs  and  carefull}'  examined  all  tlic  author- 
ities cited,  with  many  more  bearing  upon  the 
questions  involved. 

A  close  analysis  of  the  opinion  shows  that  the 
Judge  decides  but  one  question :  that  the 
"  Wright  Act"  is  in  conflict  with  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United 
States,  because  it  attempts  to  deprive  the  com- 
plainants of  their  property  without  due  process 
".  of  law,  in  that  it  does  not  give  them  an  oppor- 
tunity to  be  heard  before  the  Board  of 
Supervisors  as  to  the   sufficiency  of  the  petition 

^  filed  at  the  beginning  of  the  proceedings  for  the 

"-=  formation    of  the    district. 

The  bill  does  not  allege  that  there  had  been 
any  confirmation  proceedings;  it  is  silent  on 
that  subject,  and  the  opinion  is,  therefore,  appli- 
cable only  to  districts  which  have  not  been 
confirmed  by  the  supplemental  act  of  March  i6, 
1SS9  (Cal.  Statutes,  1S89,  p.  212).  By  that  act 
the  Board  (jf  Supervisors  of  any  irrigation  dis- 
trict is  authorized  to   commence   a    special   pro- 


m 
en 


>- 


cc 


ceediiig  iu  the  Superior  Court,  asking  for  the 
confirmation  of  all  the  proceedings  for  the  organ- 
ization of  the  district  or  the  issue  of  bonds,  and 
in  such  proceeding  any  person  interested  may 
come  in  and  contest  the  legality  of  all  the 
proceedings,  including  the  petition  for  the 
organization  of  the  district.  Referring  to  this 
act,  the  Judge  says  : 

"  Such  a  proceeding  may  or  may  not  be 
instituted  by  the  Board  of  Directors  of  the 
district,  and  was  not  instituted  in  the  pres- 
ent instance,  so  far  as  appears  from  the  bill. 
No  man's  constitutional  rights  can  depend 
upon  an  option  which  may  or  may  not  be 
exercised  by  another." 

The  necessary  inference  is  that  if  such  pro- 
ceedings had  been  had,  so  that  the  landowner 
could  have  been  heard,  he  would  have  no  right 
to  complain,  because  there  would  be,  in  fact,  due 
process  of  law.  To  this  effect  are  all  the  author- 
ities, and  notably  the  late  cases  of  Paulsen  vs. 
Portland^  149  U.  S.,  p.  30,  et  seg.^  and  Piitsbiii'g 
vs.  Backus^  154  U.  S.,  p.  421. 

The  Judge  does  not  hold,  as  has  often  been 
stated  in  the  public  press,  that  the  use  of  water 
for  irrigation  purposes  is  not  a  public  use.  He 
does  say  that  the  assessment  provided  for  in  the 
act  cannot  be  sustained,  either  under  the  general 
power  of  taxation  or  the  power  of  eminent  do- 


main,  for  the  reason  that  the  water  acquired  by 
the  district  is  not  distributed  to  the  entire  coni- 
nuinitv  within  the  district,  but  to  the  owners  of 
Land  onl}'  who,  he  sa3's,  constitute  but  a  part  of 
the  communit}'.  After  discussing  the  applica- 
bility of  the  power  of  taxation  to  such  a  purpose, 
he  concludes  thus : 

"  It  does  not  seem  to  me  to  admit  of 
doubt,  if  the  act  in  question  can  be  main- 
tained at  all,  it  must  be  under  the  power  of 
assessment  for  local  improvements,  or,  as 
expressed  by  the  Supreme  Court  in  IVur/:: 
vs.  Hoaglaud^  114  U.  S.,  p.  613,  'the 
power  of  the  Legislature  to  establish  regu- 
lations b}'^  which  adjoining  lands  held  by 
various  owners  in  severalt}'',  and  in  the  im- 
provement of  which  all  have  a  common  in- 
terest, but  which,  by  reason  of  the  peculiar 
natural  condition  of  the  whole  tract,  cannot 
be  improved  or  enjo3^ed  b}'  any  of  them 
without  the  concurrence  of  all,  may  be  re- 
claimed and  made  useful  to  all  at  their  joint 
expense  ; '  l)ut  no  more  than  any  other  can 
that  power  be  exercised  without  '  due  pro- 
cess of  law.'  Not  only  does  the  legislation 
in  fjuestion  provide  for  the  assessing  and 
selling,  and  tlius  for  the  taking  of  private 
property,  in  order  to  supply  water  for  irri- 
gation to  specific  persons  within  the  district, 
and  to  those  onl}',  but  all  of  this  is  author- 
ized to  be  done  witliout  affording  the  owner 
any  opportunit3'  to  be  heard  in  oj)position 
to  the  validity  of  the  proceedings." 


And  then  he  proceeds  to  discuss  the  question 
as  to  the  right  of  the  owner  of  lands  to  be  heard 
touching  the  petition  filed  at  the  beginning  of 
the  proceeding,  and  reaches  the  conclusion  that 
he  is  not  allowed  to  be  heard  upon  that  matter, 
and,  therefore,  he  is  deprived  of  his  property 
without  due  process. 

It  will  be  observed  that  the  question  as  to 
the  validity  of  the  assessment  is  left  undecided  ; 
or  rather,  it  is  conceded  that  it  may  be  sustained, 
under  the  rule  referred  to  in  Wnrtz  vs.  Hoag- 
land^  as  an  assessment  for  local  improvements. 
Since  that  is  the  ground  upon  which  the  statute 
itself  and  all  the  decisions  of  the  Supreme  Court 
of  California  base  the  power,  it  is  an  admission 
that  such  power  exists. 

The  Court  then  discusses  the  question  as  to 
the  water  supply  for  the  Fallbrook  Irrigation 
district,  but  as  that  is  purely  local,  and  goes  to 
the  question  of  a  compliance  with  the  statute 
only  in  that  particular  case,  it  is  not  necessary 
to  consider  it  here. 

As  already  stated,  the  only  cjuestion  actually 
decided  is  that  the  statute  does  not  provide  "  due 
process  of  law,"  because  it  does  not  permit  the 
landowner  to  appear  before  the  Board  of  Super- 
visors and  contest  the  sufficiency  of  the  petition 
asking  for  the  formation  of  the  district ;  that  is, 
whether  the  signers  are  duly  qualified.     This 


is  the  full  extent  of  the  decision  ;  all  else  is 
mere  discussion,  and,  however  interesting  it  may 
be  as  indicating  the  opinion  of  the  Judge,  it 
does  not  determine  an3'thing. 

What  is  the  lejjal  ellect  of  this  decision  upon 
tlie  bonds  of  irris^ation  districts? 

Until  reviewed  by  the  Supreme  Court  of  the 
United  States,  it  will  have  no  legal  effect  ex- 
cept as  it  may  be  followed  by  an  injunction  in 
this  particular  case  preventing  the  sale  of  the 
complainant's  propert3^  The  Supreme  Court  of 
this  State  having  decided  the  irrigation  law^s 
and  the  securities  issued  in  accordance  there- 
with to  be  valid,  the  courts  of  the  State  and  the 
officers  charged  with  duties  under  the  statute 
must  be  governed  by  the  decisions  of  the  Su- 
preme Court  of  the  State.  Otherwise,  there 
would  be  an  unsccml}'  conflict  in  authority  be- 
tween the  State  and  Federal  courts.  Should 
the  Supreme  Court  of  the  United  States  affirm 
the  decision  of  Judge  Ross,  the  State  courts 
would  then  be  bound  by  the  decision.  The  re- 
sult W(juld  be  that  the  bonds  issued  b}^  districts 
which  have  not  been  confirmed  would  be  invalid 
unless  protected  by  the  decisions  of  the  Suj)reme 
Court  of  the  State  under  the  rule  of  rrs  adju- 
dicata.  As  nearly  all  llu-  districts  have  been 
oonfirmed    and    their  securities    recognized    and 


8 


approved  by  the  courts,  tlie  effect  would  be  com 
paratively  slight. 

It  is  to  be  noted  that  two  slight  amendments 
to  the  law  would  obviate  the  objections  raised  by 
Judge  Ross.  A  change  of  one  word  in  the  con- 
firmation act  —  "  may  "  to  "  shall  "  —  would  re- 
quire confirmation  proceedings  in  all  cases,  thus 
removing  the  objection  that  it  is  optional  with 
the  district  to  give  the  landowner  a  hearing  as  to 
the  sufficiency  of  the  petition. 

To  make  the  assessment  conform  to  the 
opinion,  it  is  only  necessary  to  provide  that  the 
water  shall  be  distributed  to  the  landowners  "  and 
also  to  all  the  people  within  the  district  for 
domestic  or  other  purposes,  upon  such  reason- 
able terms  as  may  be  fixed  by  the  Board  of  Di- 
rectors." With  these  two  amendments  the  law 
would  be  constitutional,  even  in  the  light  of  this 
opinion. 

Will  the  Supreme  Court  of  the  United  States 
affirm  the  decision? 

This  question  opens  a  wide  field  of  inquiry. 
It  is  my  opinion  that  the  decision  will  be  re- 
versed, for  the  reasons  given  below. 

At  the  outset,  it  is  to  be  remembered  that  the 
Supreme  Court  of  this  State,  in  several  well- 
considered  cases — cases  that  were  thoroughly 
argued  orally   and   in   briefs  by  able   counsel — 


has  sustained  the  constitutionality  of  the  law  iu 
ever}^  particular. 

Irn'ga/ion  District  vs.  irH/ianis,  76  Cal., 

360. 
Irrigation  District  vs.  Dc  Lappc^  79  Cal., 


352- 


Crall  vs.  Poso  Irrigation  Distict^  87  Cal., 

140. 
Board  of  Directors    vs.  Trcgca^  80  Cal., 

334- 
/;/  re  Madera  Irrigation  District^  92  Cal., 

296. 

People  vs.  Se/n/a,  98  Cal.,  206. 

This  legislation  and  the  foregoing  decisions 
are  in  pursuance  of  a  general  policy  of  the  State 
at  first  adopted  with  reference  to  the  drainage  of 
the  overflowed  lands,  and  subsequently  applied 
to  the  reclamation  of  the  arid  lands  of  this  vState 

Hager  vs.  Supervisors  of  Yolo  Co.^  47  Cal., 

222. 
Dean  vs.  Davis,  51  Cal.,  406. 
People  vs.   Williams^  56  Cal.,  647. 
People  vs.  La  Rue,  67  Cal.,  526. 
Reclamation   District  ivs.  I  lager  ^  66  Cal., 

51- 
Reclamation  No.  loS  vs.  ICrans,  6  vSaw^cr, 

567- 
Hager  vs.  Rn  tarnation    Distiid   No.    /o^ 

MI  r.  s.,  701. 


10 


lu  the  first  case  under  tins  statute  that  came 
before  the  Supreme  Court  of  the  State  ( Turlock 
vs.  Williams^  supra) ^  the  Court  say: 

"  As  was  said  of  the  drainage  act,  so  it 
may  be  said  of  the  one  in  hand  relative  to 
irrigation,  that  a  system  which  has  for  its 
object  the  reclaiming  from  the  desert  of  vast 
bodies  of  land  'may  justly  be  regarded  as 
a  public  improvement  of  great  magnitude 
and  of  the  utmost  importance  to  the  com- 
munity.' It  has  been  planned  by  the  Legis- 
lature on  the  basis  of  '  dividing  a  territory 
to  be  reclaimed  into  districts,  and  assess- 
ing the  cost  of  the  improvements  on  the 
lands  to  be  benefited.'  In  none  of  the 
States  where  such  a  course  has  been  pur- 
sued '  has  the  power  of  the  Legislature  to 
cause  such  improvements  to  be  made  in  this 
method  ever  been  denied  ;  nor  do  we  see  any 
tenable  ground  upon  which  it  can  be  ques- 
tioned.' " 

» 

In  the  same  case  the  Court  say  : 

"  This  is  not  a  law  passed  to  accomplish 
exclusive  and  selfish  private  gains ;  it  is  an 
extensive  and  far-reaching  plan  by  which 
the  general  public  may  by  vastly  benefited, 
and  the  Legislature  acted  with  good  judg- 
ment in  enacting  it." 

The  Turlock  decision  was  rendered  in  May, 
1888,  more  than  seven  years  ago.     Since  that  time 


11 


tlie  court  in  all  these  cases  has  been  consistent  in 
sustaining  the  law,  and  it  appears  that  under 
them  bonds  have  been  issued  and  the  policy  of 
the  State  in  this  matter  has  been  thoroughly 
established.  Large  districts  have  been  formed, 
become  popiilous,  acquired  property  of  the  value 
of  millions  of  dollars  ;  some  have  finished  their 
works,  and  others  have  their  works  nearly  fin- 
ished. 

There  is  no  case  to  be  found  in  the  decisions 
of  the  Supreme  Court  of  the  United  States 
where  that  court  has  overthrown  a  statute  of 
an3'  State  under  such  circumstances.  On  the 
contrary,  the  rules  by  which  their  decisions  are 
governed  indicate  extreme  caution  and  great 
care  not  to  disturb  investments,  vested  rights 
and  contracts  based  upon  statutes  so  construed. 

It  is  a  fundamental  rule  of  construction  of 
the  Supreme  Court  of  the  United  States  that  a 
statute  will  not  be  declared  unconstitutional 
unless  it  is  clearly  so.  The  rule  is  thus  stated 
in  a  leading  case  : 

"  It  is  said  the  act  is  in  conflict  with  the 
Constitution  of  the  vStatc.  It  is  an  axiom 
in  .\merican  jurisprudence,  that  a  statute  is 
not  to  be  pronounced  void  on  this  ground, 
unless  the  repugnancy  to  the  Constitution 
be  clear,  and  the  conclusion  that  it  exists 
inevitable.      Every   d(nibt   is   to    be   resolved 


12 


in  support  of  the  enactment.  The  particu- 
lar clause  of  the  Constitution  must  be  speci- 
fied and  the  act  admit  of  no  reasonable 
construction  in  harmony  with  its  meaning. 
The  judicial  function  involving  such  a  result 
is  one  of  delicacy  and  to  be  exercised  always 
with  caution." 

Township  of  Pine   Grove  vs.    Talcoti^  19 
Wallace,  673. 

A  recognized  authority  upon  this  subject  says  : 

''  It  must  be  evident  to  any  one  that  the 
power  to  declare  a  legislative  enactment  void 
is  one  which  the  Judge,  conscious  of  the 
fallibility  of  the  human  judgment,  will 
shrink  from  exercising  in  a  case  where  he 
can  conscientiously,  and  with  due  regard  to 
duty  and  ofi&cial  oath,  decline  the  responsi- 
bility." 

Coolers    Constitntional  Limitations^    6th 
edition^  page  192. 

Again  the  same  authority  says : 

"  The  duty  of  the  Court  to  uphold  the 
statute  when  the  conflict  between  it  and 
the  Constitution  is  not  clear,  and  the  impli- 
cation which  must  always  exist  that  no  vio- 
lation has  been  intended  by  the  Legislature, 
may  require  it  in  some  cases,  where  the 
meaning  of  the  Constitution  is  not  in  doubt, 
to  lean  in  favor  of  such  a  construction  of  the 
statute  as  might  not,  at  first  view,  seem  most 


13 


obvious  and  natural.  For  as  a  conflict  be- 
tween the  statute  and  the  Constitution  is 
not  to  be  implied,  it  would  seem  to  follow, 
where  the  meaning  of  the  Constitution  is 
clear,  tJiat  tJic  Court ^  if  possible^  must  gizw 
the  statute  such  a  construction  as  icill  enable 
it  to  have  effect  "  {id.,  21S). 

Another  rule  of  construction  of  equal  force  is 
that  the  Federal  courts,  in  construing  a  statute 
of  a  State,  must  read  the  statute  in  the  light  of 
the  construction  which  the  State  courts  have 
given  it.  The  Supreme  Court  of  the  United 
States,  speaking  by  Mr.  Justice  Blatchford  in 
Chicago  etc.  vs.  Minnesota^  134  U.  S.,  456,  says  : 

"  The  construction  put  upon  the  statute 
by  the  Supreme  Court  of  Minnesota  must  l)e 
accepted  by  this  Court,  for  the  purposes  of 
the  present  case,  as  conclusive  and  not  to 
be  re-examined  here  as  to  its  propriet}-  or 
accuracy.  ''^'  '•'  '"'  This  being 

the  construction  of  the  statute  bj^  ivhicli  we 
arc  bound  in  considering  the  present  case, 
we  are  of  opinion  that,  so  construed,  it 
conflicts  with  tlie  Constitution  of  the  United 
States  in  the  particulars  ccjmplained  of  1)}' 
the  railroad  company." 

The  only  modification  of  tliis  rule  is  tliat 
where  the  State  court  has  been  inconsistent  in 
its  rulings,  and,  under  its  first  interpretation, 
vested  rights  have  grown  up,  as   by  the  issue  of 


14 


bonds  or  other  commercial  paper,  the  Supreme 
Court  of  the  United  States  will  follow  the  first 
interpretation  and  disregard  the  later. 

This  is  illustrated  in  a  large  number  of  cases 
arising  out  of  statutes  passed  by  some  of  the 
Western  States,  authorizing  aid  to  railroads 
built  and  owned  by  private  corporations.  In 
some  of  those  States,  before  the  bonds  had  been 
issued  and  gone  into  circulation,  and  before  the 
railroads  had  been  built,  the  Supreme  Courts  of 
the  States  at  first  sustained  them,  but  subse- 
quently reversed  their  rulings  and  held  that,  as 
the  aid  was  given  to  private  corporations,  the  use 
was  not  a  public  use  for  which  the  power  of 
taxation  could  be  employed.  In  such  cases,  the 
Supreme  Court  of  the  United  States  uniformly 
sustained  the  bonds,  holding  that  the  use  was 
a  public  use.  In  one  of  these  cases  the  Court 
says  : 

"  The  late  case  in  Iowa,  and  two  other 
cases  of  a  kindred  character  in  another 
State,  also  overruling  earlier  adjudications, 
stand  out,  so  far  as  we  are  advised,  in  unen- 
viable solitude  and  notoriety.  However,  we 
may  regard  the  late  case  in  Iowa  as  affect- 
ing the  future  ;  it  can  have  no  effect  upon 
the  past.  '  The  sound  and  true  rule  is  that, 
if  the  contract,  when  made,  was  valid  by 
the  laws  of  the  State  as  then  expounded  by 
all  departments  of  government,  and  admin- 


15 


istered  in  its  courts  of  justice,  its  validity 
and  obligation  cannot  be  impaired  by  any 
subsequent  action  of  the  Legislature,  or  a 
decision  of  its  courts  altering  the  construc- 
tion of  the  law.'  The  same  principle  ap- 
plies where  there  is  a  change  of  judicial 
decision  as  to  the  constitutional  power  of  the 
Legislature  to  enact  the  law.  To  this  rule, 
thus  enlarged,  we  adhere.  It  is  a  law  of 
this  Court,  which  rests  upon  the  plainest 
principles  of  justice.  To  hold  otherwise 
would  be  as  unjust  as  to  hold  that  rights 
acquired  under  a  statute  ma}^  be  lost  by  its 
repeal.  The  rule  embraces  this  case.  Bonds 
and  coupons  like  these,  by  universal  com- 
mercial usage  and  consent,  have  all  the 
qualities  of  commercial  paper." 

Gelpckc  vs.  City  of  Dubuque^  i  Wallace, 
206. 

In   another  case   the   same  rule  was  thus  ex- 
pressed by  the  same  Court: 

"  Tliis  Court  has  always  ruled  th:it  if  the 
contract,  when  made,  was  valid  under  the 
Constitution  and  laws  of  the  State,  as  they 
have  been  previousl}''  expounded  by  its  judi- 
cial tribunals,  and  as  tlicy  were  understood 
at  the  time,  no  subsequent  action  of  the 
Legislature  or  the  judiciar}'  will  be  regarded 
by  this  Court  as  establishing  its  invalidity. 
Such  a  rule  is  based  upon  the  highest 
principles  of  justice,     P.irtics  have  the  right 


16 


to  contract,  and  they  do  contract,  in  view  of 
the  law  as  declared  to  them  when  their  en- 
gagements are  formed.  Nothing  can  justify 
us  in  holding  them  to  any  other  rule." 

Wolcottvs.  The  Supervisors,  i6  Wall.,  690. 

Bearing  in  mind  these  views  of  the  Supreme 
Court,  I  will  proceed  to  consider  the  questions 
discussed  by  Judge  Ross  in  his  late  opinion. 

As  already  stated,  the  only  question  actually 
decided  is  that  of  "  due  process."  He  says  the 
law  is  in  conflict  with  that  portion  of  the  Four- 
teenth Amendment  to  the  Constitution  of  the 
United  States  which  provides  that  no  State 
shall  deprive  any  person  of  his  life,  liberty  or 
property  "without  due  process  of  law."  This 
conflict,  he  says,  arises   in  this  way : 

"  The  act  provides,  as  a  condition  prece- 
dent to  the  organization  of  the  district,  the 
presentation  to  the  Board  of  Supervisors  of 
the  county  in  which  the  lands,  or  the  greater 
portion  thereof,  are  situated,  at  a  regular 
meeting  of  such  board,  of  a  petition  signed 
by  fifty  or  a  majority  of  the  holders  of  title 
or  evidence  of  title  to  lands  susceptible  of 
one  mode  of  irrigation  from  a  common 
source  and  by  the  same  system  of  works, 
as  shown  by  the  equalized  county  assess- 
ment roll  next  preceding  the  presentation 
of  the  petition,  which  petition  shall  spe- 
cifically describe  the  proposed  boundaries  of 


17 


tlie  district,  and  ask  that  it  be  organized 
under  the  provisions  of  the  act.  '''  '''  '"'- 
Without  the  required  petition,  no  step  could 
be  taken  looking  to  the  organization  of  the 
district  here  in  question.  It  was  jurisdic- 
tional in  the  strictest  sense.  Two  weeks' 
notice  of  the  time  of  the  presentation  of  the 
petition  is  required  to  be  given  by  publica- 
tion. When  presented,  the  statute  declares, 
the  Board  of  Supervisors  '  shall  hear  the 
same  and  ma}^  adjourn  such  hearing  from 
time  to  time,  not  exceeding  four  weeks  in 
all,  and,  on  the  final  hearing,  may  make 
such  changes  in  the  proposed  boundaries  as 
the}'  may  fiud  to  be  proper,  and  shall  estab- 
lish and  define  such  boundaries ;  provided 
the  said  board  shall  not  modify  such  boun- 
daries so  as  to  except  from  the  operation  of 
this  act  any  territory  within  the  boundaries 
of  the  district  proposed  by  said  petition 
which  is  susceptible  of  irrigation  by  the 
same  system  of  works  applicable  to  other 
lands  in  said  proposed  district,  nor  shall 
any  of  the  lands  which  will  not,  in  the 
judgment  of  said  board,  be  benefited  by  said 
system,  be  included  within  such  district ; 
provided  that  any  person  whose  lands  are 
susceptible  of  irrigation  from  the  same 
source  ma}',  in  the  discretion  of  the  board, 
ui)on  a])i)lication  in  writing  to  said  Hoard, 
have  such  lands  included  in  such  district.' 
"  Notwithstanding  the  fact  that  the  pcti 
tion  is,  by  the  statute,  made  the  Imsis  of  the 


18 


proceeding  wliicli  is  to  culminate  in  divest- 
ing the  title  of  the  owner  of  land  against 
his  consent,  there  is  here  not  only  no  oppor- 
tunity afforded  such  owner  to  test  the 
sufficiency  of  the  petition,  but  the  power  of 
the  Board  of  Supervisors  is  in  terms  limited 
to  making- such  changes  in  the  boundaries 
proposed  by  the  petitioners  as  it  may  deem 
proper,  subject  to  the  condition  that  it  shall 
not  except  from  the  operation  of  the  act 
any  territory  within  the  boundaries  pro- 
posed by  the  petitioners  which  is  susceptible 
of  irrigation  by  the  same  system  of  works 
applicable  to  the  other  lands  in  said  pro- 
posed district,  nor  include  within  the 
boundaries,  which  it  is  required  to  establish 
and  define  within  four  weeks  after  the  pre- 
sentation of  the  petition,  any  lands  which,  in 
its  judgment,  will  not  be  benefited  by  irriga- 
tion by  the  same  system  of  works.  Every 
one  must  admit  that  in  the  matter  in  ques- 
tion the  Board  of  Supervisors  has  only  such 
power  as  is  expressly  or  by  necessary  impli- 
cation conferred  upon  it  by  the  statute  itself. 
Not  only  is  it  not  thereby  given  the  power 
to  inquire  into  the  sufficiency  of  the  petition, 
but  the  expressed  statutory  requirements 
preclude  any  such  inquiry  by  it,  at  the 
instance  of  any  owner  of  land  adversely 
affected,  or  at  all.  Yet,  the  petition  may 
not  have  been  signed  by  the  required  num- 
ber of  holders  of  title,  or  evidence  of  title,  to 
lands  within   the  district,  and,  if  not,  there 


10 


was  no  basis  upon    which    the    proceedings 
could  rest. 

"  Whatever  construction  might  otherwise 
be  placed  upon  the  word  'hear'  used  in 
the  statute,  it  cannot  be  held  to  include  the 
power  to  determine  the  entire  merits  of  the 
petition,  in  view  of  the  affirmative  require- 
ment contained  in  the  same  sentence  that 
on  its  final  hearing  the  Board  'shall  estab- 
lish and  define  such  boundaries.'  The 
Board  is  of  necessity  required  to  determine 
for  itself  whether  the  petition  upon  its  face 
is  sufficient  to  put  its  powers  in  motion  ; 
j'^et  its  determination  in  that  respect  is  not 
conclusive  upon  any  one.  As  said  by 
Judge  Bronson,  in  speaking  of  a  similar 
petition,  in  Sharp  vs.  Spic>%  4  Hill,  88: 
'  They  could  not  make  the  occasion  by 
resolving  that  it  existed.  They  had  power 
to  proceed  if  a  majority  petitioned,  but 
without  such  a  petition  they  had  no 
authority  whatever.  They  could  not  create 
the  power  by  resolving  that  they  had  it.' 
The  statute  does  not  require  or  authorize  the 
Board  of  vSupervisors  to  hear  any  contest  in 
respect  to  the  truth  of  the  allegations  of 
the  petitions,  further  than  is  implied  by  the 
provisions  that  it  make  such  changes  in  the 
proposed  boundaries  as  it  may  deem  proper. 
Had  it  been  empowered  to  entertain  a  con- 
test, for  example,  by  a  landowner  in  respect 
to  tlie  (juestion  whether  those  signing  the 
petition  were,  in   trulli,  ihc    iiulders  of  title, 


20 


or  the  evidence  of  title,  to  land  susceptible 
of  one  mode  of  irrigation  from  a  common 
source  and  by  the  same  system  of  works, 
and  it  should  find  in  favor  of  the  contestants 
upon  that  issue,  it  would  necessarily  be 
obliged  to  deny  the  petition  and  dismiss  the 
proceedings.  Yet,  so  far  from  that  course 
being  allowed  by  the  statute,  it  provides,  as 
has  been  seen,  that  the  Board  of  Supervisors 
shall  hear  the  petition,  and  may  adjourn 
such  hearing  from  time  to  time,  not  exceed- 
ing four  weeks  in  all,  and,  in  express  terms, 
declares  that  on  the  final  hearing  of  such 
petition  it  may  make  such  changes  in  the 
proposed  boundaries  as  it  find  to  be  proper, 
and  shall  establish  and  define  such  bounda- 
ries. 

"After  the  Board  of  Supervisors  shall 
have  so  established  and  defined  the  boun- 
daries of  the  proposed  district,  and  shall 
have  divided  into  divisions,  the  board  is,  by 
the  statute,  required  to  give  notice  of  an 
election  to  be  held  in  such  proposed  district 
for  the  purpose  of  determining  whether  or 
not  the  same  shall  be  organized  under  the 
provisions  of  the  act.  The  notice  is  required 
to  describe  the  boundaries  so  established, 
and  to  designate  a  name  for  such  proposed 
district.  In  the  event  two-thirds  of  the 
votes  cast  at  such  election  are  in  the  affirma- 
tive, the  Board  of  Supervisors  is,  by  the 
statute,  required  to  declare,  by  an  order 
entered  on  its   minutes,  such  territory  duly 


21 


organized  as  an  irrigation  district  nnder  the 
name  and  style  theretofore  designated,  and 
to  declare  the  persons  receiving  respectively 
the  highest  nnmber  of  votes  for  the  several 
offices  to  be  dnly  elected  thereto,  and  to 
canse  a  certified  copy  of  such  order  to  be 
immediately  filed  for  record  in  the  office  of 
the  county  recorder  of  each  count^Mn  which 
an}'  portion  of  such  land  is  situated,  and 
to  also  immediately  forward  a  copy  thereof 
to  the  clerk  of  the  Board  of  Supervisors  of 
each  of  the  counties  in  which  any  portion 
of  the  district  may  lie.  And  the  statute 
declares  that  from  and  after  the  date  of  such 
filing  the  organization  of  such  district  shall 
be  complete,  and  the  officers  thereof  shall  be 
entitled  to  enter  immediately  upon  the  duties 
of  their  respective  offices  upon  qualif3'ing 
according  to  law,  and  shall  hold  their  respec- 
tive offices  until  their  successors  are  elected 
and  qualified.  The  organization  of  the  dis- 
trict is  thus  completed  according  to  the 
statute,  without  at  an}'  time  or  place  affi)rd- 
ing  the  owner  of  the  land  within  the  boun- 
daries of  the  district  the  opportunity  to 
question  or  contest  the  sufficienc}'  of  the 
petition  which  lay  at  the  very  foundation  of 
tlie  whole  proceedings. 

After  the  organization  of  the  district  has 
been  so  completed,  its  sul^sequciil  manage- 
ment and  control  is,  by  the  statute,  placed 
in  the  hands  of  the  officers  of  the  district, 
whose  assessor  is  rccpiircd  to  annually  assess 


22 


all  the  land  within  the  district    to    pay  the 
costs  of  the  irrigation  works,  the  salaries  of 
its  officers,  etc.,  and  the  principal  and  interest 
of  such  bonds  of  the  district    as   may  have 
been  authorized  to  be  issued,  and  which,  by 
the   statute,  are  made  a  lien  upon    all  the 
lands  within   the  district.     The  assessment 
so   made,  is,  by  the  statute,  required  to  be 
equalized  by  the  Board  of  Directors  of  the 
district,  sitting  as  a  board  of    equalization, 
notice  of  which  is  required  to  be    given  by 
publication,  which  board  is  required  to  meet 
at  the  time  designated    in  the  notice,  and 
to  continue  in  session    from   day  to  day  as 
long  as  may  be  necessary,  not  to  exceed  ten 
days    exclusive   of    Sundays,    to    hear   and 
determine  such  objections  to  the  valuation 
and  assessment  as   may  come  before  them. 
The  Board  of  Directors,  sitting  as  a  board 
of  equalization,  is  given  the  power  to  change 
the  valuation  as  may  be  just,  and  its  secre- 
tary is  required  to  note  all  its  changes  made 
in  the  valuation  of    the    property  assessed, 
and  in  the    names    of    the    persons    whose 
property  is  assessed.     The    Board  of  Direc- 
tors is  then  required  to  levy  an  assessment 
sufficient  to  raise  the   required    amount  of 
money,  which  is  made  a  lien  upon  the  prop- 
erty  assessed,  and,  in    the    event    of  delin- 
quency, the  property  is  directed  to  be    sold 
by  the  collector  of   the  district  paying  the 
assessment,    and,  if    not    redeemed    within 
twelvemonths  from  sale,  the* collector, or  his 


23 


successor  in  office,  is  required  to  execute  a 
deed  to  the  purchaser,  the  consequences 
atttaching  to  whicli  have  alread}^  been 
stated. 

"  From  first  to  last,  at  no  time  or  place, 
is  the  owner  of  land  within  the  district 
given  the  opportunity-  to  be  heard  in  respect 
to  the  essential  and  all-important  questions 
whether  the  petition  upon  which  all  of  the 
proceedings  rest,  and  under  which  his  prop- 
ert}^  is  to  be  assessed,  sold  and  conveyed, 
conforms  to  the  requirements  of  the  stat- 
ute— whetlier  it  was,  in  fact,  signed  by  fifty, 
or  a  majority,  of  the  holders  of  title,  or 
evidence  of  title,  to  the  lands  within  the 
district,  as  shown  b}^  the  last  equalized  as- 
sessment roll  immediately  preceding  the 
presentation  of  the  petition.  Without  such 
a  petition,  as  has  been  said,  no  step  could 
be  taken  looking  to  the  organization  of  the 
district  {Mii/I/odu  vs.  Smithy  59  Cal.,  206; 
Zcigh/cr  \s.  Hopkins^  117  U.  S.,  688)  ;  and, 
of  course,  without  a  legally  organized  dis- 
trict there  can  be  no  such  thing  as  an 
assessment.  To  sa}-,  therefore,  as  did  the 
Supreme  Court  of  California  in  the  Madera 
case,  that  the  landowner  '  has  opportunity 
to  be  heard  as  t(j  the  corrrectiicss  ol  the 
valuation  which  is  placed  upon  his  proj)- 
erty,  and  made  the  basis  of  liis  assessment,' 
does  not  at  all  answer  the  objection.  That 
hearing,  as  stated  i)y  that  Court,  was  lim- 
ited   to    the   fiuestion    of  the    correctness  of 


24 


the  valuation  placed  by  the  assessor  upon 
the  assessed  property.  It  did  not,  and  could 
not,  under  the  terms  and  provisions  of 
the  statute,  reach  the  vital  question  of  the 
sufficiency  of  the  petition.  With  that,  the 
directors  of  the  district,  sitting  as  a  board 
of  equalization,  had  nothing  whatever  to 
do.  So  that,  under  the  provisions  of  the 
statute  in  question,  the  laud  of  the  indi- 
vidual may  be  assessed  and  sold,  and,  ac- 
cording to  the  averments  of  the  bill,  will, 
unless  the  Court  intervenes,  be  conveyed 
and  thus  taken,  without  affording  its  owner 
any  opportunity  whatever  to  question  the 
sufficiency  of  the  petition  upon  which  the 
whole  proceedings  are  based.  That  this 
would  be  to  deprive  such  owner  of  his 
property  without  due  process  of  law  would 
seem  to  be  very  clear.  'In  judging  what 
is  "  due  process  of  law,"  '  said  the  Supreme 
Court  of  the  U.  S.,  in  Hager  vs.  Reclama- 
tion District^  III  U.  S.,  708,  'respect  must 
be  had  to  the  cause  and  object  of  the  taking, 
whether  under  the  taxing  power,  the  power 
of  eminent  domain,  or  the  power  of  assess- 
ment for  local  improvement,  or  some  of 
these;  and,  if  found  to  be  suitable  or  ad- 
missible in  the  special  case,  it  will  be  ad- 
judged to  be  "due  process  of  law;"  but,  if 
found  to  be  arbitrary,  oppressive  and  un- 
just, it  may  be  declared  to  be  not  "  due 
process  of  law."  ' 


25 

"  Is  it  not  arbitraiy,  oppressive  and  iiu- 
jiisL  to  take  cue's  propert}'  without  affordiiij^ 
him  an  opportunity  to  show  the  insufficiency 
of  the  thing  that  forms  the  basis  of  the 
proceedings  under  which  the  taking  is  to 
occur;  witliout  allowing  him  to  show  that 
the  petition  required  b}'  the  statute  as  a 
fi^  condition   precedent  to  the   organization  of 

the  district;  without  which  there  could  be 
no  district ;  no  assessment,  no  sales,  no  con- 
veyance, never,  in  fact,  existed?  Surely, 
upon  that  vital,  all-important  question,  the 
owner  is  entitled  to  be  heard,  and,  just  as 
surel}',  to  take  his  property  without  afford- 
ing him  that  opportunity,  is  arbitrary, 
oppressive  and  unjust.  Assessments  in 
California  for  the  purpose  of  reclaimiug 
overflowed  and  swamp  lands,  to  which  the 
Supreme  Court  of  California,  in  the  cases 
cited,  liken  the  irrigation  districts,  are  en- 
forced by  suits,  in  which,  as  held  by  the 
Supreme  Court  of  the  United  States  in 
Ilagcr  vs.  Rcchiniali())i  District^  supra^  the 
owner  may  set  up,  by  way  of  defeuse,  all  his 
objections  to  the  validity  of  the  })r()ccediugs, 
and  he  is,  therefore,  in  such  proceediugs, 
afforded  '  due  ])rocess  of  law.'  In  the  jire.s- 
ent  case,  however,  as  has  l)cen  shown,  the 
owner  whose  ])ropert3'  is  authorized  to  be- 
taken is  not  afforded  an}'  ()i)porttinity  what- 
ever, at  any  time  or  place,  before  any  l)oai(l 
or  tribunal,  to  (luestion  the  sufficiency  of 
the  very  thing  that  lays  at  the  foundation 
of  the  whole  proceedings." 


26 


It  will  be  observed  that  the  Judge  bases  this 
opinion  upon  the  point  that  the  petition  to 
the  Board  of  Supervisors  is  "jurisdictional  in 
the  strictest  sense,"  and  he  cites  as  authority 
Mulligan  vs.  Smithy  59  Cal.,  206.  In  that  case 
the  Supreme  Court  of  the  State  held  that  the 
bonds  issued  under  the  statute  authorizing  the 
opening  of  Montgomery  Avenue  were  invalid 
because  the  Board  of  Public  Works  provided  for 
in  the  act,  and  consisting  of  the  mayor,  tax 
collector  and  city  and  county  surveyor,  did 
not  acquire  jurisdiction  to  issue  bonds.  The 
statute  provided  that  whenever  a  petition  signed 
by  the  owners  of  the  majority  in  frontage  of  the 
property  to  be  charged  with  the  costs  of  the 
improvement  (opening  of  the  avenue)  should  be 
presented  to  the  mayor,  he  and  the  other  officers 
should  proceed  to  form  themselves  into  a  Board 
of  Public  Works,  whose  duty  it  should  be  to 
ascertain  the  cost  of  the  proposed  improvement 
and  issue  bonds  to  pay  for  the  same,  the 
bonds  and  the  interest  thereon  to  be  subse- 
quently paid  for  by  an  annual  assessment  on  the 
property  benefited.  A  petition  purporting  to  be 
so  signed  was  filed  with  the  mayor,  and  tlie 
Board  of  Public  Works  assumed  to  act  by  issu- 
ing the  bonds  and  opening  the  street.  Subse- 
quently a  tax  levied  to  pay  interest  became 
due,  and  Smith,  who  owned   property   charged. 


27 


neglected  to  pa^-.  His  property'  was  sold  to 
Mulligan,  who,  having  received  a  deed,  brought 
suit  in  ejectment  to  obtain  possession.  Suiith 
objected  to  the  deed  as  evidence  on  tlie  ground 
that  the  Board  of  Public  Works  had  not  acquired 
jurisdiction  to  act ;  in  other  words,  that  the  law 
had  not  been  complied  with.  It  appeared  that 
souie  who  had  sigued  the  petition  were  presi- 
dents of  corporations  and  administrators  of  es- 
tates who  had  signed  without  authority.  Exclud- 
ing them  there  was  not  the  requisite  number  of 
signers.  The  Court  held  that  for  this  reason  the 
law  had  not  been  complied  with  ;  the  board  had 
not  acquired  jurisdictiou,  and  its  proceedings 
were  void.  There  was  no  question  as  to  the  con- 
stitutionality of  the  law  in  an}-  respect.  The 
same  question  was  before  the  Supreme  Court  of 
the  United  States  in  Zci((hlcr  vs.  Hopkins,  ii-j 
U.  S.,  688,  and  that  Court  sustained  the  decision 
of  the  State  vSupreme  Court  (ui  the  same  gnnind, 
saying : 

"  All  we  are  now  called  on  to  decide  is 
whether  the  presentation  to  the  mayor  of  a 
petition,  signed  by  the  owners  of  less  than 
a  majority  in  frontage  of  the  propert}-  to 
be  asses.sed,  as  they  were  nauied  in  the  last 
preceding  annual  assessmcut  roll,  was  suf- 
ficient to  authorize  the  levj'  of  the  tax  for 
which  the  hjts  in  coutrovcrsy  were  sold,  and 
we  have  no  hesitation  in  saying  it  was  not. 


28 


It  will  be  time  enougli  to  consider  the  rights 
of  bona  fide  holders  of  '  Montgomery  Avenne 
Bonds,'  if  there  be  anj',  when  a  case  arises 
which  involves  such  questions." 

In  a  similar  case — the  opening  of  Dupont 
street — the  constitutionality  of  the  statute  was 
questioned  upon  the  ground  that  it  did  not  pro- 
vide due  process.  The  Supreme  Court  of  this 
State  sustained  the  law,  and  the  Supreme  Court 
of  the  United  States  affirmed  the  ruling  [Lent 
vs.  Tillson,  140  U.  S.,  316). 

Is  the  petition  provided  for  in  tlie  Wright 
Act  jurisdictional  witliin  the  meaning  of 
the  case  here  referred  to? 

Let  us  see. 

In  the  Montgomery  Avenue  Act  the  only  con- 
dition precedent  to  the  issue  of  the  bonds  was 
the  petition.  There  was  no  vote  of  the  people 
interested  required ;  no  election  ;  no  other  con- 
dition precedent.  The  sufficiency  of  the  petition 
was  therefore  necessarily  jurisdictional  to  the 
issuing  of  the  bonds.  How  is  it  in  regard  to  the 
formation  of  irrigation  districts,  and  the  issuing 
of  the  bonds  by  them  ?  The  petition  must  be 
presented  to  the  Board  of  Supervisors,  which  is  a 
public  body — a  political  subdivision  of  the  State, 
whose  proceedings  are  always  open  to  the  public 
at  meetings  held  regularly,  as  required   by  law. 


29 


Two  weeks'  notice  of  the  presentation  of  the  pe- 
tition is  reqnired  to  be  given.  At  the  presenta- 
tion tlie  supervisors  are  required  to  hear  the 
same.  The}'  are  presumed  to  do  their  dut}-.  And 
the  courts  will  take  judicial  notice  that  in  all  the 
States,  from  the  ver}'  foundation  of  the  Govern- 
ment, in  ever}-  county  there  is  a  similar  govern- 
ing board  to  whom  petitions  upon  various  sub- 
jects may  be  at  au}-  time  presented.  As  the 
proceedings  are  alwa3's  open,  au}'  citizen  maj' 
appear  and  be  heard  touching  such  petition  or 
any  other  public  matter.  The  right  so  to  be 
heard  has  not  been  questioned.  The  word 
"  hear  "  has  a  well  understood  meaning.  It  sig- 
nifies the  right  to  present  argument  or  evidence 
pro  and  con,  and  the  subsequent  determination 
upon  such  evidence  and  argument.  This  is  so 
well  known  that  the  Legislature  might  well 
have  assumed  that  it  is  understood  and  failed 
to  pnn'ide  speciall}-  for  it.  That  it  has  been 
understood  has  been  specificall}'  decided  b}-  the 
Supreme  Court  of  this  vState,  as  will  be  seen  b}- 
reference  to  the  case  of  Cciilral  lrn)ratiou  Dis- 
trict vs.  Ih  L(ipp(\  79  Cal.,  3SI,  where  numerous 
objections  were  raised  to  the  petition  and  the 
form  and  substance  of  the  bond  acc-ompanying 
it.  TIk-  Court  liehl  the  bond  to  be  surfioient 
and  the  j)ublicati()n  of  the  petition  to  be  suf- 
ficient.     This     ruling    necessarily    implies    the 


30 


right  to  be  heard  touching  such  matters,  and 
negatives  the  views  expressed  by  Judge  Ross. 
It  does  more  than  that:  it  is  a  construction  of 
the  statute  itself  wdiich  binds  the  Federal  courts. 

The  Court,  by  Comjuissioner  Hayne,  say : 

"  Many  objections  are  taken  to  the  pro- 
ceedings for  the  organization  of  the  district, 
and  the  argument  rests  in  great  part  upon 
the  proposition  that  the  proceedings  are  to 
be  strictly  construed.  It  is  said  the  pro- 
ceedings are  for  the  purpose  of  divesting  the 
citizen  of  his  property  in  invitunt.  It  is 
true  that  later  on  provision  is  made  for 
assessing  the  property  within  a  district. 
But  no  assessments  have  yet  been  levied  and 
none  are  involved  in  the  case  before  us. 
The  objections  made  relate  to  the  organiza- 
tion of  the  district.  The  primary  purpose 
of  such  organization  is  to  perform  certain 
important  public  functions.  The  power  of 
assessment,  it  is  true,  is  incidental ;  but  in 
the  same  wa}'-  it  is  incidental  to  cities  and 
other  municipal  corporations,  so  called,  for 
the  improvement  of  streets,  etc.;  and  it  can 
no  more  be  said  that  for  this  reason  pro- 
ceedings for  the  organization  of  irrigation 
districts  are  for  the  purpose  of  depriving  the 
citizen  of  his  property  in  invitnm^  than  the 
same  could  be  said  of  proceedings  for  the 
organization  of  cities  and  other  municipal 
corporations.  '''  *  *  So  far  as  proceed- 
ings for  the  organization  are  concerned,  we 


31 


think  that  a  reasonably  liberal  rnle  of  con- 
strnction  should  be  adopted  to  carry  out  the 
wise  purposes  of  the  law." 

Judge  Ross  ignores  this  rule  of  liberal  con- 
struction by  which  he  should  be  bound,  and 
construes  the  law  so  strictly  as  to  deu}'  to  the 
supervisors  au}'  discretion  to  hear  any  one  as  to 
the  sufficiency  of  the  petition.  He  contends 
that  the  hearing  of  the  petition  is  confined  to  the 
question  of  boundaries,  because  the  law  says : 

"  When  such  petition  is  presented,  the 
said  Board  shall  hear  the  same,  and  ma}' 
adjourn  such  hearing  from  time  to  time,  not 
exceeding  four  weeks  in  all,  and  on  the 
final  hearing  nia^'  make  such  changes  in 
the  proposed  boundaries  as  thcv  may  find  to 
be  proper,  and  shall  establish  and  define 
such  boundaries." 

This,  he  says,  precludes  a  heiring  as  to 
whether  the  petitioners  are  the  ''  holders  of  title 
or  the  evidence  of  title."  As  the  assessment  roll 
is  the  controlling  and  (Miiy  e\idence  of  the  fact, 
it  is  hard  to  see  the  necessity  for  a  "  hearing  " 
on  the  ])oint  ;  and  it  is  still  harder  to  see  how 
the  hearing  is  denied  even  as  to  that.  It  can  be 
so  held  only  by  aj)pl3Mng  a  very  technical   rule. 

The  Supremo  Court  ol  iliis  Statt'  had  long  prior 
to  the  I)e  Lappe  case  construed  a  similar  law  in 


32 


the  same  way.  In  a  case  entitled  Hagcr  vs. 
Supervisors  of  Yolo  County^  47  Cal.,  228,  the 
Court,  by  Mr.  Justice  Crocket,  say  : 

"  In  the  case  at  bar,  the  petitioner  ap- 
peared before  the  supervisors,  when  the  pro- 
ceedings for  organizing  the  district  were  in 
fieri^  and  interposed  no  objection  to  the  in- 
sufSciency  of  the  petition,  except  that  he 
proposed  to  include  in  the  district  his  lands, 
which  were  held  under  a  Mexican  grant. 
Instead  of  taking  steps  promptly  to  arrest 
the  proceeding,  if  the  petition  was  insuffi- 
cient, it  does  not  appear  that  he  made  any 
movement  in  that  direction  until  more  than 
six  months  had  elapsed,  and  it  may  be  that 
large  sums  were  expended  in  the  interim  in 
reclaiming  the  lands.  Under  these  circum- 
stances, when  the  petition  is  assailable  on 
technical  grounds,  we  should  construe  it 
liberally  and  indulge  every  reasonable  in- 
tendment in  its  support.  In  the  language  of 
Chief  Justice  Shaw,  even  though  the  record 
should  '  appear  to  be  defective  and  informal 
when  subtantial  justice  has  been  done,'  or 
'  very  mischievous  consequences  would  en- 
sue,' or  '  when  the  parties  cannot  be  placed 
in  statu  qiLO^  the  Court,  in  the  exercise  of  a 
sound  discretion,  may  deny  the  writ." 

The  Municipal  Government  Act  of  1883 
Stats.  1883,  p.  94)  and  the  Wright  Act  copied 
almost  literally  the  language  of  the  Reclamation 


Act  as  to  this  petition.  This  judicial  interpreta- 
tion, tlierefore,  enters  into  and  becomes  part  of 
the  statute. 

In  this  connection  it  nia}'  be  proper  to  state 
that  I  drafted  the  Municipal  Government  Act 
referred  to,  and  it  was  passed  with  few  changes. 
In  performing'  this  service  I  consulted  the 
statutes  and  decisions  of  other  States  on  the 
subject  and  found  no  decision  holding  this 
method  of  forming  public  corporations  objection- 
able in  au}'  sense.  That  it  has  not  been  found 
"arbitrary,  oppressive  and  unjust"  is  evident 
from  the  fact  that  no  effort  has  ever  been  made 
to  repeal  or  even  to  amend  it  in  this  particular. 

The  point  that  most  concerns  the  landowner 
in  the  organization  of  the  district  is  the  fixing 
of  tlie  boundaries.  He  wants  to  know,  above  all 
things,  whether  his  land  is  included  or  not,  and 
it  is  conceded  he  has  a  hearing  as  to  that.  The 
sufficienc}'  of  the  petiticm  as  to  the  signers  is  to 
be  determined  b\-  an  inspection  of  the  last  assess- 
ment roll.  If  the  supervisors  find  the  names  on 
the  roll  that  is  sufficient.  No  amount  of  hearing 
could  change  the  result.   The  law  (section  i),says: 

"  The  ecjuali/ed  county  assessment  roll 
next  preceding  the  presentation  of  a  ])elition 
for  the  organization  of  an  irrigation  district 
under  the  provisions  of  this  act  shall  be 
sufficient  evidence  for  the-  purposes  of  this 
act." 


34 


In  the  recent  case  of  Paulsen  vs.  Portland^ 
alread}^  referred  to,  the  Supreme  Court  of  the 
United  States  sustained  an  assessment  levied  by 
the  city  of  Portland  npou  the  owners  of  property 
within  the  boundaries  of  a  sewer  district, 
although  there  was  no  law  authorizing  any 
notice  to  the  taxpayer,  saying : 

"  But  what  was  in  fact  done  by  the  city? 
By  ordinance  5068  it  ordered  the  con- 
struction of  a  sewer,  and  directed  what 
area  should  be  drained  into  that  sewer, 
and  created  a  taxing  district  out  of  that 
area.  For  these^  no  notice  or  assent  by  the 
taxpayer  zvas  iiecessary.  A  sewer  is  con- 
structed in  the  exercise  of  the  police  power 
for  the  health  and  cleanliness  of  the  city, 
and  the  police  power  is  exercised  solely  at 
the  legislative  will.  So  also  the  determi- 
nation of  a  territorial  district  to  be  taxed 
for  a  local  improvejuent  is  ivithin  the 
province  of  legislative  discretion  [Willard 
vs.  Presbury,  14  Wall,  676 ;  Spencer  vs. 
Merchant^  125  U.  S.,  345,  355).  By  the 
same  ordinance  the  city  also  provided  that 
the  cost  of  the  sewer  should  be  distributed 
npon  the  property  within  the  sewer  dis- 
trict, and  appointed  viewers  to  estimate 
the  proportionate  share  which  each  piece 
of  property  should  bear.      Here,  for  THE 

FIRST     TIME      IN      PROCEEDINGS      OF      THIS 

NATURE,  where  an  attempt  is  made  to  cast 
upon    his    particular    property    a     certain 


35 


proportion  of  the  burden  of  the  cost,  the 
taxpa3'er  has  a  riglit  to  be  licard.  The 
ordinance  named  a  pLace  at  which  the 
viewers  should  meet,  directed  that  they 
should  hold  stated  meetings  at  that  place, 
and  that  all  persons  interested  mi_i;ht 
appear  and  be  heard  by  them  in  the  mat- 
ter of  making  the  estimates.  The  viewers, 
upon  their  appointment,  gave  notice  b}^ 
publication  in  the  official  paper  of  the  city 
of  the  time  of  their  first  meeting.  Notice 
b}'  publication  is  sufficient  notice  in  pro- 
ceedings of  this  nature  [Lent  vs.  Tillson^ 
140  U.  S.,  316,  32S).  As  the  form  of  the 
notice  and  the  time  of  its  publication  are  not 
affirmatively'  disclosed  in  the  complaint,  it 
must  be  assumed  that  there  was  no  defect 
in  respect  to  these  matters.  The  precise 
objection  is  that,  although  proper  and  suffi- 
cient notice  may  have  been  given,  it  was  not 
in  terms  prescribed  by  the  ordinance  ap- 
pointing the  viewers.  But,  as  held  b}-  the 
Supreme  Court  of  Oregon  in  the  case  re- 
ferred to  [Minard  vs.  Doiio/as  Coni/xiuVy  () 
Oregon,  206),  that  which  is  implied  in  the 
statute  is  as  much  a  part  of  it  as  that  which 
is  expressed ;  and  where  a  statute  or  an 
ordinance  provides  for  stated  meetings  of  a 
board,  designates  the  place  :il  which  the 
meetings  are  to  be  lield,  and  directs  that  all 
persons  interested  in  llic  matter  may  l)c 
lieard  before  it,  it  is,  as  said  by  Judge 
Strahan,  not  a  strange  interpretation  tiial  it 


36 


is  implied  thereby  tliat  some  suitable  notice 
shall  be  given  to  the  parties  interested. 

"  But,  further,  the  viewers  made  a  formal 
report  to  the  council  of  what  they  had  done, 
stated  they  had,  in  accordance  with  the 
requirements  of  ordinance  506S,  given  notice 
by  publication,  and  the  couucil,  in  the  sub- 
sequent ordinance  5162,  recites  that  their 
report  is  satisfactory  and  adopted.  In  other 
words,  the  couucil,  by  this  latter  ordinauce, 
approved  the  construction  placed  by  the 
viewers  upon  the  first,  to  the  effect  that  it 
required  notice.  It  would  seem  that,  when 
notice  was  in  fact  given,  notice  whose  suf- 
ficiency is  not  challenged,  a  construction  put 
by  tJic  council  2ipon  the  scope  and  effect  of  its 
oiun  ordinance  should  be  entitled  to  respect 
i)i  any  challenge  of  the  regularity  of  the 
proceedings  had  under  the  ordinance.  It  is 
settled  that,  if  provision  is  made  '  for  notice 
to  and  hearing  of  each  proprietor  at  some 
stage  of  the  proceedings,  upon  the  question 
what  proportion  of  the  tax  shall  be  assessed 
upon  his  land,  there  is  no  taking  of  his 
property  without  due  process  of  law  ' 
{McMille?i  vs.  Anderson^  95  U.  S.,  37 ; 
Davidson  vs.  Neiu  Orleans^  96  U.  S.,  97  ; 
Hager  vs,.  Reclamation  District.,  iii  U.  S., 
701  ;  Spencer  vs.  MercJiant.^  125  U.  S.,  345). 
If,  before  the  viewers  had  in  fact  met,  yet 
after  they  had  published  notice,  the  couucil 
had  passed  an  ordinauce  reciting  an  approval 
of  that  act    of   notice,   it  could   hardly    be 


87 


doubted  that  the  full  requiremcuts  of  law  as 
to  uotice  were   satisfied.     Because   this   ap- 
proval was  uot  made  uutil  after  the  heariny^ 
before   the  viewers,  is  it  thereb}'  worthless, 
of    uo    validity,    and    can    this    Court    say, 
when  those  proceedings  have  been  sustained 
by    the    Supreme  Court  of   the  State,  that 
rights  guaranteed   03^  the  Federal  Constitu- 
tion   have    been    stricken    down,    and    that 
these     individuals    have    been    deprived    of 
their  property  without  due  process  of  law? 
"  Now,  without  deciding  that   this    notice 
is  sufficient  notice  to  bring  the    proceedings 
within  'due    process  of  law,'  it  is  worthy  of 
remark  that  during  the  ten    days   of  publi- 
cation, made  as  required  by  said  section  104 
and  section  2  of  ordinance  5162,  the   plain- 
tiffs did  not  challenge  the  regularity  of  the 
proceedings  or  appl}'  to  the   council   for  an 
inquir}^  into  the  justness  of  the    apportion- 
ment, nor  did  they  commence  any  suit  until 
a  month  after  the    time   when   warrants    for 
the  collection    of     delinquent     assessments 
have  been  ordered  by  the  council ;  in  other 
words,  only  after  payment  has   been    made 
by    a    portion    of  the    taxpayers    did    these 
])laintiffs  ask  any  relief.     Without  continu- 
ing this  incjuiry  any  further,  we  are    of  the 
oj)iniou     that,    notwithstanding    the    (lou1)t 
arising  from  the   lack    of  express    ])r()vision 
for  notice  in  ordinance    506S,  it   cannot    l)e 
held,  in  view  of  tlic  notice  which  was  given, 
of  the  construction   placed  upon    this    ordi- 


.'J()472*> 


38 


nance  by  the  council  thereafter,  and  of  the 
approval  by  the  Supreme  Court  of  the  pro- 
ceedings as  in  conformity  to  the  laws  of  the 
State,  that  the  provisions  of  the  Federal 
Constitution,  requiring  due  process  of  law, 
have  been  violated." 

In  the  Falbrook  case  the  complainant  has  not 
waited  for  ten  days  nor  thirty  days  merely,  but 
for  years,  and  even  now  he  avers  that  the  peti- 
tion is  as  required  by  law,  that  is,  that  it  is  suffi- 
cient in  all  respects.  How,  then,  has  he  been 
injured  by  not  having  been  heard?  If  he  had 
appeared  and  been  heard  the  result  would  be  the 
same.  Is  it  not  absurd  to  say  that  he  is  the  vic- 
tim of  "arbitrary,  unjust  and  oppressive"  pro- 
cedure in  being  denied  a  hearing,  when,  by  his 
own  admission,  there  was  no  necessity  for  a 
hearing  ? 

In  a  later  case  {^Pittsburg  ct  al.  vs.  Backus^  154 
U.  S.,  421)  the  same  court,  by  Mr.  Justice  Brewer, 
says: 

"  It  is, contended  specifically  that  the  act 
fails  of  due  process  of  law  respecting  the 
assessment  in  that  it  does  not  require  notice 
by  the  State  board  at  any  time  before  the 
assessments  are  made  final ;  and  several 
authorities  are  cited  in  support  of  the  propo- 
sition that  it  is  essential  to  the  validity  of 
any  proceeding  by  which  the  property  of  the 


39 


iiidividiKil  is  taken,  that  notice  ninst  be  given 
at  some  time  and  in  some  form,  before  the 
final  adjudication.  But  the  difficult}'  with 
this  argument  is  that  it  is  not  founded  in 
fact.  The  statute  names  the  time  and  place 
tor  the  meeting  of  the  assessing  board,  and 
that  is  sufficient  in  tax  proceedings;  per- 
sonal notice  is  not  necessary.  In  State  Rail- 
road Tax  Cases  (p.  6io)  are  these  words, 
which  are  also  quoted  with  approval  in  the 
Kentucky'  Railroad  Tax  Cases.  'This  board 
has  its  tiuie  of  sitting  fixed  b}^  law.  Its 
sessions  are  not  secret.  No  obstruction 
e.xists  to  the  appearance  of  an}'  one  before 
it  to  assert  a  right  or  redress  a  wrong;  and 
in  the  business  of  assessing  taxes  this  is  all 
that  can  be  reasonably  asked.  Again,  it  is 
said  that  the  act  docs  not  require  the  State 
board  to  grant  to  the  railroad  companies 
any  hearing,  or  opportunity  to  h^  heard, 
for  tlie  correction  of  errors  at  any  time 
after  the  assessmeuts  have  been  agreed  upon 
by  the  board,  and  before  they  are  made 
final  and  absolute,  or  before  the  final  adjourn- 
ment of  the  board;  and  also  tliat  it  gives 
to  the  board  arbitrary  power  to  deny  to  tlie 
plaintiffs  any  hearing  at  an}-  lime;  but  tlie 
fact  and  the  law  are  botli  against  this  con- 
tention. The  plaintiff  did  appear  before 
tlie  board  and  was  heard  by  its  counsel 
and  through  its  officers,  and  the  construct- 
ion placed  by  the  »Supreme  C'»nrt  of  the 
State  on    the   act — a   construction    wliioh   is 


40 


conclusive  upon  this  Court — is  that  the  rail- 
road companies  are  given  the  right  to  be 
present  and  to  be  heard." 

These  cases,  in  my  opinion,  are  absolutely 
conclusive  upon  the  question  of  due  process,  and, 
if  they  had  been  brought  to  the  attention  of 
Judge  Ross,  I  do  not  think  he  would  have  ren- 
dered the  decision  he  did.  They  were  not  before 
him,  however,  as  the  briefs  show. 

Conceding,  however,  that  the  landowner  has  a 
right  to  be  heard  touching  the  sufficiency  of  the 
petition,  and  that  the  Supervisors  under  this  act 
cannot  hear  him,  there  is  a  sufficient  answer  in 
this :  that  he  has  the  same  remedy  under  the 
irrigation  laws  that  the  landowner  had  in  the 
Montgomery  Avenue  case,  as  decided  in  Mulli- 
gan vs.  Smithy  sitpi^a ;  he  can  wait  until  his 
property  has  been  sold  and  he  is  sued  in  eject- 
ment for  possession,  when  for  the  first  time  his 
property  is  about  to  be  taken — when  he  can 
show,  if  it  be  a  fact,  that  the  petition  was  not 
signed  as  required  by  law.  It  is  no  answer  to 
this  proposition  to  say  that  the  deed  is  made 
conclusive  evidence.  If  such  a  deed  would 
operate  to  deprive  the  landowner  of  his  property 
without  due  process  of  law,  that  part  of  the 
statute  making  it  conclusive  evidence  would  be 
void,  as  in  conflict  with  the  Fourteenth  Amend- 
ment to  the  Constitution  of  the  United  States, 


41 


and  it  is  the  duty  of  the  Court  to  hold  an  unim- 
portant portion  of  tlie  hiw  unconstitutional  rather 
than  to  destro\'  the  whole  statute.  The  Supreme 
Court  of  the  United  States,  if  driven  to  the 
alternative  of  holding  this  part  of  the  statute 
unconstitutional,  would  undoubtedl}-  so  declare, 
rather  than  to  destroy  the  whole  statute  and 
thereb}''  disturb  rights  which  have  become  vested 
under  the  law  as  interpreted  by  the  State 
Supreme  Court.  Hence,  in  any  event,  the 
property  owner  has  a  right  to  be  heard  and  has 
a  remed}'  at  law — "due  process  of  law."  If  it 
be  said  that  the  action  is  barred  by  the  Statute 
of  Limitations,  the  answer  is  that,  unless  the 
property  owner  is  himself  at  fault  by  his  delay, 
the  Statute  of  Limitations  that  would  deprive 
him  of  due  process  would  be  equally  void  ;  and 
thus  the  coutrovers3'  in  any  event  would  be 
reduced  to  the  question  as  to  whether  the  peti- 
tion was  in  compliance  with  the  statute.  It 
would  be  a  question  of  fact  to  be  determined  in 
each  particular  case.  If  the  evidence  should 
show  the  petition  to  be  properly-  signed  and 
sufficient  in  other  respects  in  one  district,  that 
district  would  Ije  held  to  be  k-gally  organized  ; 
otherwi.se,  that  particular  district  would  fall. 
It  would  cease  to  \k-  a  (luestioii  ol  the  constitu- 
tionality of  the  statute  as  a  whole,  and  l)c-conie 
a  question  as  to  whether  the  statute  had  been 
complied  with,   just  as   in    J//////;'<///    vs.   Sniif/i. 


42 


Again,  he  has  a  plain  remedy  by  certiorari.  If 
the  supervisors  proceed  without  a  sufficient  peti- 
tion, they  exceed  their  jurisdiction,  and  the  record 
will  show  it.  The  evidence  as  to  the  qualifica- 
tion of  the  signers  is  the  assessment  roll,  made 
so  by  section  i  of  the  statute.  That  is  part  of  the 
record,  and  certiorari  would  be  a  complete 
remedy,  as  it  would  show  at  once  whether  the 
signers  were  qualified  {^Hagar  vs.  Supervisors 
Yolo  County.^  47  Cal.,  222). 

But,  as  a  matter  of  fact,  the  petition  presented 
to  the  supervisors  is  not  jurisdictional  in  so  far 
as  the  issue  of  bonds  or  the  fixing  of  a  charge 
against  any  property  is  concerned,  nor  at  all  in 
the  sense  that  the  landowner  is  entitled  to  a 
hearing.  It  is  merely  a  step  prescribed  by  the 
Legislature,  preliminary  to  the  organization  of 
a  public  corporation.  Here  again  comes  in  the 
rule  of  construction  by  the  Supreme  Court  of 
the  State,  whicli  is  binding  upon  the  Federal 
Courts  {Central  Dist.  vs.  De  Lappe^  supra). 
The  Legislature  has  exclusive  power  to  form 
public  corporations  withiu  the  State.  It  is 
an  act  of  sovereignty,  an  act  of  paramount 
authority.  lu  the  absence  of  constitutional 
restrictions,  it  may  pass  a  special  act  creating 
a  public  corporation  out  of  any  territory  speci- 
fied in  the  act,  authorizing  the  exercise  of 
taxing    power    for    municipal     purposes     within 


40 


those  Hiuits  without  even  consulting  the  wishes 
of  the  people  concerned.  A  corporation  so  created 
may  be  a  count}-,  or  a  city,  or  a  school  district, 
or  a  reclamation  district,  or  an  irrigation  dis- 
trict. This  proposition  is  so  fundamenlal  that  it 
will  not  be  disputed,  and  it  requires  the  citation 
of  no  authorit}'  in  support  of  it.  In  this  Slate 
the  Constitution  requires  such  corporations  to 
be  formed  under  general  laws.  Hence  the 
Legislature  has  prescribed  certain  steps  to  be 
taken  for  the  forming  of  municipal  corporations, 
the  first  of  which  is  the  presentation  to  the 
supervisors  of  a  petition,  "  signed  by  at  least 
fift}'  of  the  electors  of  the  coniit3\  residents 
within  the  limits  of  such  proposed   corporation." 

The  language  of  the  statute  is  as  follows: 

"  The  petition  shall  set  forth  and  parlicu- 
larl}'  describe  the  proposed  boundaries  of 
such  corporation,  and  state  the  number  of 
inhabitants  therein  as  nearly  as  may  be,  and 
shall  pray  that  the  same  may  be  incorpo- 
rated under  the  provisions  of  this  act. 
Such  petition  shall  be  presented  at  a  regular 
meeting  of  such  board,  and  shall  be  pub- 
lished for  at  least  two  weeks  bef  )rc  the  time 
at  which  the  sam3  is  to  be  presented,  in 
some  newsi)aper  ])rinte(l  and  published  in 
such  county,  together  with  a  notice  stating 
the  time  of  the  meeting  at  which  the  same 
will  be    presented.      W'lien    such    i)etition  is 


44 


presented,  the  Board  of  Supervisors  shall 
hear  the  same,  and  may  adjourn  such  hear- 
ing from  time  to  time,  not  exceeding  two 
months  in  all,  and  on  the  final  hearing  shall 
make  such  changes  in  the  proposed  boun- 
daries as  they  may  find  to  be  proper,  and 
shall  establish  and  define  such  boundaries, 
and  shall  ascertain  and  determine  how  many 
inhabitants  reside  within  such  boundaries  ; 
provided,  that  any  changes  made  by  said 
Board  of  Supervisors  shall  not  include  any 
territory  outside  of  the  boundaries  described 
in  such  petition.  The  boundaries  so  estab- 
lished by  the  Board  of  Supervisors  shall  be 
the  boundaries  of  such  municipal  corpora- 
tion until  by  action,  authorized  by  law,  for 
the  annexation  of  additional  territory  to  or 
the  taking  of  territory  from  said  municipal 
corporation,  such  boundaries  shall  be 
changed."      (Statutes    of  Cal.,  1883,  p.  94). 

In  other  words,  the  Legislature  uses  the 
supervisors  as  an  agency  for  the  performance  of 
this  duty  cast  upon  it  by  the  Constitution. 

After  the  municipal  corporation  is  formed  in 
this  way  it  has  the  power  of  taxation  and  the 
power  to  issue  bonds,  precisely  the  same  as  irri- 
gation districts.  Yet  it  has  never  been  held  that 
this  petition  is  jurisdictional,  as  in  the  case  of 
Mulligan  vs.  Smith — ^jurisdictional  to  the  issue 
of  bonds.  The  reason  is  obvious,  as  already 
stated,  that  it  is  simply  part  of  the  plan  adopted 


4o 


by  the  Legislature  for  forming  public  corpora- 
tions. It  is  the  taxpaj'er  himself,  acting  through 
his  chosen  representatives  in  the  Legislature  and 
the  Board  of  Supervisors. 

B}^  means  of  this  petition  the  Board  of  Super- 
visors acquires  jurisdiction,  not  to  issue  bonds, 
but  sinipU'  to  call  an  election  of  the  people  resid- 
ing within  the  boundaries  proposed,  in  order 
that  the}'  may  determine  for  themselves  whether 
the}'  will  have  a  corporation.  If  b}-  a  two- 
thirds  vote  the}'  decide  in  favor  of  the  corpora- 
tion, then  the  Supervisors  for  the  first  time 
acquire  jurisdiction  to  make  an  order  declaring 
the  corporation  formed.  There  their  power 
ceases,  and  the  whole  matter  is  turned  over  to 
the  Board  of  Directors,  assessor  and  collector — 
the  officers  elected  by  the  people  concerned. 
This  Board  of  Directors,  in  irrigation  districts, 
must  then  estimate  the  cost  of  the  proposed  irri- 
gation works  and  submit  the  proposition,  as  to 
whether  bonds  shall  be  issued  to  pay  such  cost, 
to  another  election  of  the  people  concerned. 
Unless  a  majority  of  the  people  vote  in  fivor  of 
these  bonds,  they  have  no  jurisdiction  in  the 
premises.  Here  is  the  real  jurisdictional  fact. 
Here  the  taxpayer  is  entitled  to  be  heard, — and 
he  is  heaid  just  the  same  as  the  taxpayer  is 
heard  in  any  city  or  county.  He  has  a  voice  in 
the  election  of   the    directors    who  are  liis  repre- 


46 


seutatives,  and  through  whom  he  himself  deter- 
mines whether  the  bonds  shall  be  issued  and 
his  land  made  liable.  It  will  be  seen  that  this 
case  is  entirely  different  from  that  presented  by 
the  Montgomery  Avenue  Act.  There  there 
was  no  election  and  no  opportunity  for  the  tax- 
payer to  act  throi-i^ji^  his  representatives,  chosen 
for  the  purpose;      It    does  not  matter  that  the 

rtax-payer Is  a 'non-resident.  He  may  become  a 
resident,  and  if  he  does  not  it  is  his  own  volun- 
tary aq^.N^  The  rights  of  foreigners  are  entitled 
to  full  respect,  but  they  are  entitled  to  no  greater 
respect  than  the  rights  of  non-resident  citizens. 
If  they  are  to  be  allowed  to  interpose  the  "  sheet 
anchor"  of  the  Federal  Constitution  whenever 
the  State  seeks  to  carry  out  its  policy  of  local 
improvements,  and  thereby  defeat  the  declared 
purpose  of  the  people,  the  necessity  for  separate 
State  governments  disappears.  We  may  as  well 
abolish  them  and  surrender  all  Jo  the  central 
government. 

^'  The  rule  is  well  settled  that  a  taxpayer  cannot 
question  the  existence  of  a  public  corporation. 
That  can  be  done  only  by  the  people  in  quo 
warranto  proceedings  {Quint  vs.  Hojfnian^  103 
Cal.,  506 ;  People  vs.  Sehna  Irrigation  Dist.^  98 
Cal.,  206).  The  Supreme  Court  of  California 
has  decided  that  irrigation  districts  are  public 
corporations,  and  this  construction  of  the   law, 


47 


as  we  have   seen,  is   binding    upon   the  Federal 
courts. 

It  is  sufficient  for  tlie  landowner  to  know  that 
the    corporaticMi    exists    dr    faclo.      Why,    then 
does  he  need  to  be  heard  in   the  organization  of 
the  corporation  ? 

In  this  case  the  bill  avers  that  tlie  statute  lias 
been  complied  with.  That  is  an  admission  that 
the  petition  was  signed  b}'  the  requisite  number 
of  qualified  persons.  How,  then,  would  a  hear- 
ing have  benefited  the  plaintiffs?  And,  if  they 
could  derive  no  benefit  from  a  hearing,  how  are 
the^'  injured  b\''  not  being  heard?  liad  the 
complainants  averred  that  the  law  was  not  com- 
plied witli,  that  the  petition  was  not  j^roperly 
signed,  and  that  they  were  denied  a  hearing  in 
the  premises,  they  would  have  stated  a  case, 
if  their  theor}-  is  correct;  but,  n])(>n  tlie  aver- 
ments of  the  bill,  they  have  no  case. 

Finally  and  conclusively,  under  the  express 
rulings  of  the  Supreme  Court  of  the  Unilctl 
States  in  a  case  exactly  in  ])()int,  if  the  Wright 
Act  must  be  construed  as  containing  hmguage 
which  forbids  a  hearing  which  is  necessar}-  to 
due  process  of  law,  that  i)art  of  the  statute  is 
unconstitntif^nal  and  will  be  deemed  stricken 
out,  leaving  the  residue  ol  the  statute  in  force. 
In  the  l\r)ili(( kv  Kai'lioiid  Tn x  case   (lis    ^^-  S., 


48 


page  304),  the  Court,  by  Mr.  Justice  Mattliews, 
say :  "  It  is  said,  however,  in  answer  to  this,  by 
counsel  for  plaintiffs  in  error,  in  argument, 
that,  whatever  was  in  fact  this  alleged  hearing, 
it  could  only  have  been  accorded  as  a  matter  of 
grace  and  •  favor,  because  it  was  not  demand- 
able,  as  of  right,  under  the  law,  and  conse- 
quently has  no  such  legal  value  as  attaches  to  a 
hearing  to  which  the  law  gives  a  right,  and  to 
which  it  compels  the  attention  of  the  officer 
under  an  imperative  obligation  with  the  sense 
of  official  responsibility  for  impartial  and  right 
decision,  which  is  imputed  to  the  discharge  of 
official  duty."  But  such  is  not  the  construction 
put  upon  the  statute,  as  we  have  seen,  by  the 
Court  of  Appeals  of  the  State,  nor  the  practical 
construction,  as  we  infer  from  the  averments  of 
the  pleadings,  put  upon  it  by  the  officers  called 
to  act  under  it.  And  if  the  plaintiffs  in  error 
have  the  constitutional  right  to  such  hearing, 
for  which  they  contend,  the  statute  is  properly 
to  be  construed  so  as  to  recognize  and  respect 
it,  and  not  to  deuy  it.  The  constitution  and  the 
statute  will  be  construed  together  as  one  law. 
This  was  the  principal  of  construction  applied 
by  this  Court,  following  the  decisions  of  the 
State  court,  in  Neal  vs.  Delaware^  103  U.  S., 
370,  where  words,  denying  the  right,  were 
regarded  as    stricken    out  of    the  State  Consti- 


49 


tution  and  statutes  by  the  controlling  language 
of  the  Constitution  of  the  United  States;  and  in- 
the  case  of  Cooper  vs.  TIw  IWiudsivorlh  Board 
of  Works,  14  C.  B.  N.  S.,  iSo,  in  a  case  where  a 
hearing  was  deemed  essential,  it  was  said  by 
Byles,  J.,  "  That,  although  there  are  no  positive 
words  in  a  statute  requiring  that  the  party  shall 
be  heard,  yet  the  justice  of  the  common  law  will 
supply  the  omission  of  the  Legislature." 

This  branch  of  the  case  may  be  summed  uj) 
as  follows: 

1.  The  landowner  is  not  entitled  to  be  heard 
as  of  right,  in  the  formation  of  the  district,  ex- 
cept bv  his  vote.  The  petition  is  jurisdictional 
only  to  authorize  the  supervisors  to  call  an  elec- 
tion and  submit  the  proposition  to  the  people  of 
the  proposed  district  to  enable  them  to  determine 
whether  there  shall  be  a  district. 

2.  The  sessions  of  the  Hoard  of  Supervisors 
are  public,  and  the  landowner  has  a  right  to 
attend  there  and  be  heard.  This  is  so  by  uni- 
versal custom  in  all  the  vStates,  and  in  this  State 
it  is  so  by  judicial  recognition  and  construction 
with  reference  to  this  particular  matter.  Such 
construction  is  conclusive  Uj)on  the  I'Vderal 
courts.  If  he  is  entitled  lo  be  heartl,  and  the 
language  of   tlu-   statute  denies   him   a   heaiing, 


50 


that  part    of    the    law    will  be  unconstitutional 
under  the  ruling  in   Kentucky  Tax  Cases,  115 

U.  S.,  334. 

3.  Tlie  landowner  has  a  hearing  by  his  vote 
at  the  election  of  directors  and  again  at  the 
election  to  determine  whether  bonds  shall  be 
issued. 

4.  He  has  a  hearing  before  the  Board  of 
Equalization  before  the  assessment  becomes 
final. 

5.  He  has  the  remedy  by  certiorari  to  test  the 
sufi&ciency  of  the  petition  for  the  formation  of 
the  district,  and  the  question  can  be  determined 
by  the  record,  as  the  statute  makes  the  assess- 
ment roll  the  only  evidence  of  the  fact  whether 
the  signers  are  "  holders  of  title  or  evidence  of 
title." 

6.  And,  finally,  he  can  refuse  to  pay  and  resist 
when  suit  in  ejectment  is  brought,  as  in  Mulli- 
gan vs.  Smith.  That  portion  of  the  law  making 
the  deed  conclusive  evidence  of  title  is  uncon- 
stitutional if  it  operates  to  prevent  "  due  process 
of  law;  "  but  the  remainder  of  the  i\ct  stands. 

Is  the  Assessment  Legal? 

As  already  stated,  Judge  Ross  discusses  the 
power  of  taxation  in  connection  with  the  irriga- 
tion districts,  and,  without  deciding  any  point, 


51 


expresses  the  opinion,  inasmuch  as  the  water 
is  to  be  distributed  solely  to  the  landowners,  who 
are  but  a  part  of  the  connnunit}-,  that  the  use  for 
which  the  taxes  or  assessments  are  levied  is  not 
a  public  use.     He  sa^'s: 

"  The  property  to  be  held  by  the  corpora- 
tion whose  creation  is  provided  for  b}^  the 
legislation  in  question  is  not,  as  said  b}^  the 
Supreme  Court  of  California  /;/  re  Madera 
Irn'galion  District^  92  Cal.,  322,  to  be  held 
in  trust  for  the  public,  but  in  trust  for  land- 
owners of  the  district  and  for  nobod}'^  else. 
Manifestl}'  they  do  not  constitute  the  public 
whether  they  number  many  or  few,  and 
for  their  exclusive  use  the  private  property 
of  no  man  can  be  taken  without  his  con- 
sent." 

And  further  on,  after  referring  to  a  New  Jer- 
sey case,  he  says : 

''  Like  the  case  last  cited,  the  scope  of  the 
legislation  under  consideration  is  not  limited 
to  cases  where  the  territory  designed  to  be 
supplied  with  water  for  irrigation  is  so  ex- 
tensive as  to  assume  the  importance  of  a 
public  undertaking,  and  where,  when  i)ro- 
vided,  the  water  is  available  to  every  person 
within  the  district  upon  the  same  terms  and 
conditions;  but  it  embraces  every  case  where 
a  tract  of  country,  be  it  large  or  small,  is 
susceptible  of  one  mode  of  irrigation   from  a 


52 


common  source,  and  by  the  same  system  of 
works,  and  a  majority  of  the  holders  of  title, 
or  evidence  of  title,  thereto  petition  for  the 
organization  of  an  irrigation  district,  and 
two-thirds  of  the  qualified  voters  within  the 
boundaries  of  the  district  as  established  by 
the  Board  of  Supervisors  vote  in  favor  of  it. 
A  half  dozen  persons,  as  well  as  many  hun- 
dreds, may  constitute  a  majority  of  the  hold- 
ers of  title,  or  evidence  of  title,  to  the  lands 
falling  within  the  designation  of  the  statute, 
and  the  water  to  be  secured  by  the  means 
provided  for,  so  far  from  being  available  to 
every  person  within  the  district,  upon  the 
same  terms  and  conditions,  is  limited  to  the 
use  of  specific  individuals,  namely,  the  land- 
owners of  the  district." 

As  we  have  already  seen,  the  irrigation  law 
does  not  assume  to  authorize  the  exercise  of  the 
general  power  of  taxation,  but  merely  the  power 
of  assessment  for  local  improvements.  The  case 
of  Wurtz  vs.  Hoaglaiid^  114  U.  S.,  610,  is  full 
and  sufficient  authority  upon  the  question.  Mr. 
Justice  Gray,  delivering  the  opinion  of  the  Court, 
says : 

"  General  laws  authorizing  the  drainage 
of  tracts  of  swamp  and  low  lands,  by  com- 
missioners appointed  upon  proceedings 
instituted  by  some  of  the  owners  of  the 
lands,  and  the  assessment  of  the  whole 
expense  of  the   work   upon    all    the    lands 


53 


within  the  tract  in  qnestii)n,  have  long 
existed  in  the  State  of  New  Jersey,  and 
have  been  snstained  and  acted  on  by  her 
conrts  nnder  the  Coustitntion  of  1776,  as 
well  as  nnder  tliat  of  1S44." 

And  he   quotes   with    approval    the    following 
language  of  Chancellor  Zabriskie  : 

"  But  there  is  another  branch  of  legisla- 
tive power  that  may  be  appealed  to  as 
authorizing  the  taking  of  the  lands  required 
for  the  works  to  drain  these  meadows.  1 1  is 
the  power  of  the  government  to  prescribe 
public  regulations  for  the  better  and  more 
economical  management  of  the  property  of 
persons  whose  property  adjoins,  or  which, 
from  some  other  reason,  can  be  better  man- 
aged and  improved  by  some  joint  operation  : 
such  as  the  power  of  regulating  the  build- 
ing of  party  walls ;  making  and  maintaining 
partition  fences  and  ditches  ;  constructing 
ditches  and  sewers  for  the  draining  of 
uplands  and  marshes,  which  can  more 
advantageously  be  drained  I)}-  a  common 
sewer  or  ditch.  This  is  a  well  known  legis- 
lative power,  recognized  and  treated  of  by 
all  jurisconsults  and  writers  ui)on  law 
through  the  civilized  world,  a  branch  of 
legislative  jjower  exercised  I)}'  this  Slate 
before  and  since  the  Revolution,  and  before 
and  since  the  adoption  of  tlic  present  Consti- 
tuti(jn,   and    repeatedly    recognized    b}'    our 


54 


courts.  The  Legislature  has  power  to  regu- 
late these  subjects,  either  by  general  law,  or 
by  particular  laws  for  certain  localities  or 
particular  and  defined  tracts  of  land.  When 
the  Constitution  vested  the  legislative  power 
in  the  Senate  and  General  Assembly,  it  con- 
ferred the  power  to  make  these  public  regula- 
tions as  a  well  understood  part  of  that  legisla- 
tive power.  *  *  '^'-  The  principle  of  them 
all  is  to  make  an  improvement  common  to 
all  concerned,  at  the  common  expense  of  all. 
*  -J--  *  ^//  //i/^  ^(j^^  f^ji  ancient  and  zvell 
knozvn  exercise  of  legislative  pozvery 

Further  on  the  learned  Justice  says: 

"  This  review  of  the  cases  clearly  shows 
that  general  laws  for  the  drainage  of  large 
tracts  of  swamp  and  low  lands,  upon  pro- 
ceedings instituted  by  some  of  the  proprie- 
tors of  the  lands  to  compel  all  to  contribute 
to  the  expense  of  their  drainage,  have  been 
maintained  by  the  courts  of  New  Jersey 
(without  reference  to  the  power  of  taking 
private  property  for  the  public  use  under  the 
right  of  eminent  domain,  or  to  the  power 
of  suppressing  a  nuisance  dangerous  to  the 
public  health)  as  a  just  and  constitutional 
exercise  of  the  power  of  the  Legislature  to 
establish  regulations  by  which  adjoining 
lands,  held  by  various  owners  in  severalty, 
and  in  the  improvement  of  which  all  have  a 
common  interest,  but  which,  by  reason  of 
the  peculiar  natural  condition   of  the  whole 


55 


tract,  crimiot  be  improved  or  eiijo3'edby  any 
of  them  without  the  concurrence  of  all  at 
their  joint  expense.  The  case  comes  within 
the  principle  upon  which  this  court  upheld 
the  validity  of  the  general  mill  acts  in 
Head  vs.  A}uoskcag  Mannfaihiyiiio  Co.^  113 
U.  S.,  9.  *  '•'  ''■'  As  the  statute  is  appli- 
cable to  all  lands  of  the  same  kind,  and  as 
no  person  can  be  assessed  under  it  without 
notice  and  c)i)p()rtunity  to  be  heard,  the 
plaintiffs  in  error  have  neither  been  denied 
the  equal  protection  of  the  laws,  nor  been 
deprived  of  their  property  without  due  pro- 
cess of  law,  within  the  meaning  of  the 
Fourteenth  Amendment  of  the  Constitution 
of  the  United  States.  Barbicr  vs.  CoinicUv^ 
113  U.  S.,  27;  li'a/krr  xs.  Saiiz'inr/^  C)2  \}. 
S.,  90;  Davidson  vs.  Neiv  Orleans^  96  U.  S., 
97  ;  Ilaoar  vs.  Rcclauialion  District^  1 1 1 
U.  S.,  701." 

In  the  case  of  Hi-ad  vs.  Anioskea^r^  above  re- 
ferred to.  tlie  Court  held  that  a  statute  of  New 
Hampshire  which  authorizes  au}'  person  to  erect 
and  maintain  on  his  tnvn  land  a  water  mill  and 
mill  dam  upon  and  across  any  stream  not  navi- 
gable, paying,  to  the  owners  of  lands  llowed, 
damages  assessed  in  a  judicial  proceeding,  does 
not  de])rive  them  of  their  property  without  due 
process  or  take  tlK-ir  jiroiK-rty  for  a  piivate  use. 
The  Court  did  not  liol  1  that  the  use  was  a  i)ul)- 
lic  use,  but  said  : 


56 


"  When  property,  iu  which  several  per- 
sons have  a  commou  interest,  cannot  be 
fully  and  beneficiall}^  enjoyed  in  its  existing 
condition,  the  law  often  provides  a  way  in 
which  they  may  compel  one  another  to  sub- 
mit to  measures  necessary  to  secure  its 
beneficial  enjoyment,  making  equitable  com- 
pensation to  any  whose  control  of  or  interest 
in  the  property  is  thereby  modified." 

In  the  same  case  the  Court  say : 

"  The  statutes  which '  have  long  existed 
in  many  States,  authorizing  the  majority  of 
the  owners  in  severalty  of  adiacent  meadow 
or  swamp  lands  to  have  commissioners 
appointed  to  drain  and  improve  the  whole 
tract,  by  cutting  ditches  or  otherwise,  and  to 
assess  and  levy  the  amount  of  the  expense 
upon  all  the  proprietors  iu  proportion  to  the 
benefits  received,  have  been  often  upheld, 
independently  of  any  effect  upon  the  public 
health,  as  reasonable  regulations  for  the 
general  advantage  of  those  who  are  treated 
for  this  purpose  as  owners  of  a  common 
property." 

In  Barbicr  vs.  Connel/y^  also  referred  to  by 
Mr.  Justice  Gray,  the  Court,  speaking  by  Mr. 
Justice  Field,  say : 

"  But  neither  the  Fourteenth  Amendment 
— broad  and  comprehensive  as  it  is — nor 
any  other  amendment,  was  designed  to  in- 
terfere with  the  power  of  the  State,  some- 


57 


times  termed  its  police  power,  to  prescribe 
regulations  to  promote  the  health,  peace, 
morals,  education,  and  good  order  of  the 
people,  and  to  legislate  so  as  to  increase  the 
industries  of  the  State,  develop  its  resources, 
and  add  to  its  wealth  and  prosperity.  From 
the  verv  necessities  of  society,  legislation  of 
a  special  character,  having  these  objects  in 
view,  must  often  be  had  in  certain  districts, 
sitih  (IS  for  d) ai)ii)ig  viarsltcs  aiid  i)){i^ating 
arid  plains.  Special  burdens  are  often 
necessary  for  general  benefits — for  supph'- 
ing  water,  preventing  fires,  lighting  districts, 
clearing  streets,  opening  parks,  and  man}' 
other  objects." 

In  Ilaoar  vs.  Reclamation  Distrid  Xo.  io8 
also  cited  above,  Mr.  Justice  Field,  speaking  for 
the  Court,  says : 

"  It  is  not  open  to  doubt  that  it  is  in  the 
power  of  the  State  to  require  local  improve- 
ments to  be  made  which  are  essential  to  the 
health  and  prosperity  of  any  community 
within  its  borders.  To  this  end  it  may 
provide  for  the  construction  ol  canals  for 
draining  marsh}-  and  malarious  districts, 
and  of  levees  to  })revcnt  inundation,  as  well 
as  for  lliL-  opening  of  streets  in  cities  and  ol 
roads  in  the  counlrw  The  system  adopted 
in  California  to  reclaim  swamp  and  over- 
llowed  lands  by  forming  districts,  wliere  the 
lands  are  susceptible  of  reclamation  in   one 


58 


mode,  is  not  essentially  different  from  that 
of  other  States  where  lands  of  that  descrip- 
tion are  found." 

The  foregoing  authorities  fully  support  the 
power  of  the  State  to  authorize  the  owners  of 
arid  land 

"which  cannot  be  fully  and  beneficially 
enjoyed  in  its  existing  condition  to  compel 
one  another  to  submit  to  measures  neces- 
sary to  secure  its  beneficial  enjoyment." 

It  is  of  no  consequence  what  this  power  is 
called.  It  may  be  termed  "  taxation,"  "  assess- 
ment," or  merely  an  apportionment  of  benefits 
and  burdens.  It  is,  as  said  by  Chancellor  Zabris- 
kie,  in  the  language  quoted  and  approved  in 
Wiirtz  vs.  Hoagland^  "an  ancient  and  well- 
known  exercise  of  legislative  power." 

In  this  view  it  is  not  profitable  to  take  much 
time  in  discussing  whether  there  is  a  public  use 
or  not  when  the  water — the  benefit — is  to  be 
distributed  to  the  landowners  alone  and  not  to 
the  eutire  community.  It  is  sufficient  to  add 
that  the  so-called  "Wright  Act  "designates  the 
burden  an  "  assessment,"  and  the  Supreme  Court 
of  the  State,  in  all  its  decisions  upon  the  recla- 
mation districts,  and  the  irrigation  districts, 
during  a  period  of  twenty-seven  years,  has  held 
it  to  be  an  assessment  for  local  improvements. 


o9 


This  construction  is  binding  upon  the  Federal 
courts,  since  it  does  not  conflict  with  the  Con- 
stitution of  the  United  States  nor  cover  any 
principle  of  general  jurisprudence  witliiu  the 
rule  perniittiug  the  Federal  courts  to  disregard 
the  decisions  of  local  courts. 

"  Whether  the  expense  of  making  such 
iniprovenients  shall  be  paid  out  of  the  gen- 
eral treasur}',  or  be  assessed  upon  the  abut- 
ting property  or  other  propert}'-  specially 
benefited,  and,  if  in  the  latter  mode,  whether 
the  assessment  shall  be  upon  all  prope^'t}- 
found  to  be  benefited,  or  alone  upon  the 
abuttors,  according  to  frontage,  or  according 
to  the  area  of  their  lots,  is  according  to  the 
present  weight  of  authority  considered  to 
be  a  question  of  legislative  expedienc}',  un- 
less there  is  some  special  restraining  consti- 
tutional provision  upon  the  subject." 

2  Dillon  on  Municip.  Corp.,  sec.  752. 

As  the  manner  of  distril)uting  the  burden  is 
thus  a  question  of  "  legislative  expediency,"  so 
also  is  the  method  of  distributing  the  l)enefits. 
In  I hu'idso)}  vs.  Neiv  Or/cans^  96  U.  S.,  97,  it 
was  held  that 

"  neither  the  corporate  agency  b}'  which  the 
work  is  done,  the  excessive  price  allowed  for 
the  work  by  statute,  nor  the  relative  im- 
portance of  the  work  to  the  vahie  of  the 
land  as.scssed,  nor  tlie  fact  that  the  as.se.ss- 


60 


ment  is  made  before  the  work  is  done,  nor 
that  the  assessment  is  unequal  as  regards 
the  benefits  conferred^  nor  that  personal 
judgments  are  rendered  for  the  amount  as- 
sessed, is  a  matter  in  which  the  Federal 
Constitution  controls  the  State  authorities." 

The  manner  of  distributing  the  benefits  is, 
therefore,  for  the  State  to  determine  in  its  own 
way.  In  the  irrigation  districts  the  benefits 
take  the  form  of  water,  and  it  is  to  be  distributed 
among  the  landowners  for  the  obvious  reason 
that  no  one  else  needs  the  water.  The  water  is 
obtained  for  irrigation,  and  only  land  can  be 
irrigated.  For  this  purpose  the  landowners 
constitute  the  community  or  the  public.  If 
there  be  merchants  or  others  living  in  the  dis- 
trict they  are  indirectly  benefited,  although  they 
have  no  land,  by  the  increase  of  business  inci- 
dent to  irrigation,  or  in  other  ways. 

It  is  contended  that,  as  the  landowners  do  not 
constitute  the  entire  community,  water  obtained 
and  supplied  to  them  exclusively  is  taken  for  a 
private  use.  But  the  landowners  pay  all  the 
assessments — bear  all  the  burden.  Why  should 
they  not  have  the  benefits  ?  The  distribution  is 
certainly  just.  The  man  who  pays  nothing — 
who  has  no  land  to  irrigate — is  in  no  position  to 
complain.  If  he  be  a  tenant  he  obtains  water 
just  as  one  who  rents   a   house   in  a  city  gets  it 


61 


through  his  landlord,  or  the  truest  in  a  hotel 
gets  water  through  the  house.  In  irrigation  dis- 
tricts it  is  well  known  that  water  tor  domestic 
uses  is  obtained  from  wells,  as  a  rule,  because 
the  water  is  clear  and  cooler.  Water  in  the 
canals  is  not  fit  for  such  use  ;  but  such  as  it  is  it 
is  supplied  free  of  charge.  For  watering  stock, 
for  bathing,  or  for  washing  clothing,  it  can  be  ob- 
tained free  when  suitable.  Thus  the  man  who 
is  not  a  landowner  gets  all  the  benefit  he  requires 
and  pa3'S  nothing.  What  more  does  he  want? 
Wh}^  should  he  be  allowed  to  complain  and  seek 
to  prevent  the  man  who  does  pa}-  from  getting 
water  for  his  land  ?  If  he  wants  water  to  irri- 
gate land  he  can  get  it  by  becoming  a  landowner. 
Here  the  complainants  are  landowners.  How 
can  the}'  be  heard  in  complaint?  The}''  are  to 
share  the  benefits  :  the}'  belong  to  the  favored 
class  to  whom  water  is  to  be  distributed. 

Railways  are  public  highways — so  considered 
by  the  courts — and  the  Supreme  Court  of  the 
United  vStatcs  has  often  declared  the  riglit  of  the 
States  to  authorize  the  issue  of  bonds  in  their  aid, 
and  to  levy  taxes  to  pay  such  bonds.  That  tlie 
railways  arc  owned  by  private  corporations  and 
are  managed  for  tlieir  private  benefit  makes  no 
difference.  Tlie  owners  can  and  alwa\s  do  re 
(juire  the  payment  of  a  certain  sum  as  lare  or  for 
freight.      No  one  can  travel  on   the  railway  willi- 


62 


out  paying  a  sum  which  goes  into  the  private 
funds  of  the  corporation.  He  must  first  become 
the  owner  of  a  ticket  before  he  can  travel,  just  as 
he  must  become  the  owner  of  land  before  he  can 
irrigate.  If  he  has  no  money  he  cannot  buy  the 
land  ;  nor  can  he  buy  a  railway  ticket.  There 
are  many  people  who  have  no  money  and  cannot 
ride  on  railways,  yet  they  are  part  of  the  com- 
munity. The  benefits  of  the  railway  are 
distributed  to  less  than  the  whole  community — 
they  are  distributed  to  a  specific  class — those 
who  have  money  with  which  to  buy  tickets.  If 
distribution  to  all  be  the  true  test  of  a  public  use, 
then  taxation  in  aid  of  railways  is  unconsti- 
tutional. But  the  question  is  stare  decisis  that 
the  State  has  a  right  to  adopt  the  policy  of 
encouraging  railways. 

So  with  the  school  district.  The  benefits  de- 
rived from  this  species  of  use  take  the  form  of 
education  of  children.  The  children  get  the 
benefits  directly ;  all  others  only  indirectly. 
Yet  the  children  are  only  a  part  of  the  commu- 
nity. They  do  not  bear  any  of  the  burden. 
Even  their  parents,  who  get  the  greater  portion 
of  the  indirect  benefits,  may  pay  but  a  small 
part  of  the  burden.  Most  of  the  lands  within 
the  district  may  belong  to  a  bachelor  or  a  non- 
resident, who  has  no  children  to  attend  school. 
He  is  but    remotely  benefited,  though    he  may 


G3 


piy  most  of  tlic  tax.  He  may  even  be  opposed 
to  public  schools  and  believe  them  to  be  worse 
than  useless.  The  State  takes  no  notice  of  such 
thing's.  It  does  not  consult  him,  except  as  he 
may  make  himself  felt  through  the  balK)t-box. 
It  is  settled  law  that  the  State  has  the  right  to 
adopt  this  policy  relative  to  education. 

And  so  on.  There  is  reall}^  nothing,  unless 
it  be  the  common  highway  or  a  public  street, 
which  will  bear  the  test  that  all  the  community 
must  be  benefited  in  order  to  justify-  the  jiower  of 
taxation.  Even  these  will  not.  A  street  in 
San  Francisco  is  of  little  value  to  the  farmer-  in 
Los  Angeles.  Roads  built  at  the  expense  of 
the  State — as  they  have  been  and  ma_v  be — may 
be  constructed  in  the  extreme  northern  part  of 
the  State,  so  that  a  man  in  the  southern  part 
would  have  to  travel  seven  hundred  miles  at 
great  expense  in  order  to  be  benefited  by  the 
road.  So  it  might  be  and  is  in  many  of  our 
large  counties.  Yet  all  taxpayers  are  presumed 
to  be  benefited  1)3'  such  imj-)rovcments  in  the 
general  prosperity  they  promote.  Those  in  the 
immediate  neighborhood  of  the  improvement  can 
use  it  daily,  are  directly  benefited,  and  should 
pay  for  it.  vSo  with  irrigation  districts.  The 
State  adopts  the  general  policy  of  aiding  irriga- 
tion by  ])erniitting  those  directly  benefited  to 
control  the  work  and  bear  tlir  burden. 


64 


In  1872  the  Legislature  of  Kansas  passed  a 
law  authorizing  towns  or  counties  to  issue  bonds 
in  aid  of  railways  "  and  other  internal  improve- 
ments," and  also  passed  another  statute  declaring 
grist  mills  to  be  "  public  mills  "  and  regulating 
their  management.  The  township  of  Burlington 
issued  $8,000  in  bonds  to  aid  such  a  mill.  The 
State  Supreme  Court  sustained  the  bonds  and  so 
did  the  Supreme  Court  of  the  United  States  in 
TozvnsJiip  of  Burlington  vs.  Beaslcy^  94  U.  S., 
310.     The  Court,  by  Mr.  Justice  Hunt,  say  : 

"  A  mill  run  by  water  power  is  declared 
to  be  an  internal  improvement  by  the  statute 
we  are  considering.  A  ferry  falls  within  the 
same  principle,  and  so  does  a  steam  mill.  It 
would  require  great  nicety  of  reasoning  to 
give  a  definition  of  the  expression  'internal 
improvement '  which  should  include  a  grist 
mill  run  by  water,  and  exclude  one  operated 
by  steam;  or  which  should  show  that  the 
means  of  transportation  were  more  valuable 
to  the  people  of  Kansas  than  the  means  of 
obtaining  bread.  It  would  be  a  poor  con- 
solation to  the  people  of  this  town  to  give 
them  the  power  of  going  in  and  out   of  the 

town     upon    a    railroad,   while    they    were 
refused  the  means  of  grinding  their  wheat." 

So  we  may  say  it  would  require  great  nicety 
of  reasoning  to  show  why  the  power  of  assess- 
ment may  be  exercised  for  the   purpose   of  mak- 


C^5 


iiig  lands  useful  by  taking  water  off  them  while 
den3'ing  the  power  to  make  lands  useful  by  put- 
ting water  on  them ;  or  to  show  that  a  public 
highway  through  a  rainless  region  is  more  valu- 
able to  the  people  of  California  than  a  S3'steni  of 
canals  by  which  the  arid  plains  may  be  converted 
into  fruitful  fields.  It  would  be  a  poor  consola- 
tion 4:o  know  that  the  power  of  taxation  can  be 
emplo\'ed  in  support  of  schools  while  it  is  refused 
in  aid  of  that  without  which  schools  are  impossi- 
ble, because  the  lands  are  not  habitable. 

The  Supreme  Court  also  sustained  a  similar 
statute  passed  in  Nebraska  and  the  bonds  in  aid 
of  a  mill  there. 

Blair  vs.  Cumi}ig  Co.^  iii  U.  S.,  363. 

Policy  of  the  Law. 

As  we  have  seen,  the  "  Wright  Act  "  is  expres- 
sive of  a  part  of  the  policy  of  the  State  long 
pursued  for  the  reclamation  of  arid  lands.  Each 
State  has  its  peculiar  interests  that  call  for  a 
legislative  policy.  In  some,  the  policy  is  to 
encourage  the  construction  of  grist  mills,  as  in 
Kansas  and  Nebraska.  vSucli  a  policy  is  unnec- 
essary in  California.  Public  aid  to  grist  mills 
is  never  required  and,  therefore,  never  given.  In 
the  Eastern  vStates,  mills  for  m  luufacturing 
require  aid,  and  the  policy  of  the  vState  favors 
them  by  permitting  the    flowing   of    lauds    upon 


66 


making  compensation.  In  all  the  Western 
States  the  construction  of  railways  required  aid, 
and  the  palicy  of  such  States  extended  such  aid. 
In  California  there  are  nearly  3,000,000  acres  of 
overflowed  lauds,  rich  and  easy  of  access,  but 
useless  in  their  natural  state.  To  aid  their 
reclamation  the  State  adopted  the  policy  of 
creating"  public  corporations  charged  with  the 
duty  of  constructing  works  for  the  drainage 
of  the  lands  at  the  expense  of  those  directly 
benefited.  This  policy  was  sustained  by  the 
State  courts  and  by  the  Federal  courts.  The 
State  also  contains  more  than  20,000,000  acres 
of  fertile  but  arid  lands  which  are  useless 
without  irrigation.  To  bring  them  into  cultiva- 
tion— to  make  them  fit  for  homes,  farms  and 
prosperous  communities,  sustaining  public 
schools,  highways  and  all  the  elements  of 
wealth  and  civilization — the  State  extended  to 
them  that  system  which  had  been  applied  to  the 
overflowed  lands  with  the  approval  of  the  courts, 
State  and  National.  This  legislation  has  been 
uniformly  approved  by  the  State  courts.  Will 
the  Federal  courts  destroy  it  ?  Will  the  national 
government,  through  its  courts,  say  to  this  State  : 
"We  will  permit  Kansas  and  Nebraska  to  use 
the  power  of  taxation  in  aid  of  their  policy  of 
aiding  grist  mills ;  we  will  permit  New  Hamp- 
shire and  the  other  Eastern  States  to  take  private 


07 


property'  for  the  use  of  man  iifacturing  plants; 
we  will  allow  aii}-  of  the  States  to  aid  railways 
owned  by  private  corporations  ;  we  will  sustain 
the  power  of  taxation  in  support  of  schools  and 
swamp  land  districts,  but  the  State  of  California 
cannot  reclaim  arid  lauds  by  the  agenc}^  of 
public  corporations  clothed  with  the  power  of 
assessment?  "  Is  it  probable  that  such  a  ruling 
will  be  made?     I  think  not. 

It  is  a  matter  of  history  that  the  practice  of 
irrigation  is  as  old  as  civilization.  It  was  first 
taught  to  mankiud  b3^  the  Almighty  in  the 
annual  overflow  of  the  Nile  more  than  2,000 
years  before  Christ  (Kinney  on  Irrigation,  sec. 
10).  lu  all  ages  and  in  all  civilized  countries 
where  there  are  arid  lands,  irrigation  has  been 
fostered  and  encouraged  b^^  the  governing 
power.  The  result  is  seen  in  Ital}',  where  with 
only  two-thirds  the  area  of  California  a  population 
of  over  30,000,000  is  supported,  and  in  Japan, 
with  an  area  less  than  that  of  Califoruia, 
there  is  a  population  of  41,000,000.  To-day 
over  half  the  population  oi^  the  world  is  sup- 
ported from  irrigated  lauds. 

In  view  of  these  facts,  will  the  courts  apply 
narrow  and  technical  rules  in  the  construction  of 
a  statute  designed  to  carry  out  a  policy  fraught 
with    such    tremendous  'results  ?      Tiie    Code    of 


68 


California  declares  that  the  power  of  eminent 
domain  maybe  exercised  "to  supply  farming 
neighborhoods  with  water  "  for  irrigation. 

Code  C.  P.,  sec.  1238,  subd.  4. 

Lux  vs.  Haggin^  69  Cal.,  304. 

The  Constitution  of  the  State  (Art.  XIV) 
declares  that  water  "appropriated  for  distribu- 
tion "  is  a  public  use  and  "  subject  to  regulation 
and  control  by  the  State."  The  statute  under 
consideration  (section  12)  declares  "  the  use  of  all 
water  required  for  the  irrigation  of  the  lands  of 
any  district  formed  under  the  provisions  of  this 
act  *  *  *  to  be  a  public  use,  subject  to  the 
.regulation  and  control  of  the  State."  This  is 
the  settled  policy  of  the  State. 

Abuse  of  the  Law. 

It  is  sometimes  said  the  law  has  been  abused. 
What  law  has  not  been  abused  ?  Even  the  law 
concerning  marriages,  which  lies  at  the  founda- 
tioa  of  society,  has  been  often  abused.  Shall  we 
therefore  abolish  marriages  ?  Private  corpora- 
tions to  irrigate  lands  have  grossly  abused  the 
law,  and  under  their  management  there  is  no 
prospect  for  the  landowner  but  perpetual  tribute. 
The  street  railway  corporations  of  San  Fran- 
cisco have  authorized  the  issue  of  more 
than  twice  the  amount  of  bonds  authorized  by 


69 


all  the  irrigation  districts  of  the  State,  and  have 
issued  four  times  the  amount  actually  issued 
b}'  the  irrigated  districts,  though  the  bonds 
of  irrigation  districts  are  secured  by  1,500,000 
acres  of  the  best  lands  in  the  State.  The  pro- 
ceeds of  the  bonds  of  the  street  railways,  judic- 
iousl}'  expended,  would  probably  construct  twice 
as  much  road.  One  water  compau}-  of  San 
Francisco  has  issued  more  bonds  than  all  the 
irrigation  districts.  The  railway's  of  the  State 
have  issued  bonds  for  about  $100,000,000 — prob- 
abl}^  twice  the  cost  of  the  roads  covered  b}'  the 
securities.  The  mining  corporations  of  the 
State  have  collected  from  their  stockholders  an 
aggregate  sum  exceeding  $100,000,000,  and 
much  of  it  has  been  wasted.  Is  this  abuse  a 
reason  for  abolishing  the  law  under  w^hicli  such 
corporations  have  been  organized  ?  The  iSo,ooo 
miles  of  railwa}^  in  the  United  States  have  been 
bonded  for  nearly  $6,000,000,000 — a  much 
greater  sum  than  the  actual  cost;  and  so  reckless 
have  the  private  corporations  controlling  them 
been  in  disposing  of  securities  thai  the  market 
has  been  destroyed.  Some  of  the  most  impor- 
tant of  our  railway  system.s — covered  b}-  out- 
standing ol)ligations  exceeding  a  thousand 
millions  of  dollars — have  gone  into  the  hands  of 
receivers  and  ceased  to  ])ay  interest  on  their 
bonds.       The    rei)utati(ni     of    this    country    has 


70 


suffered  more  from  this  cause  tliau  all  others. 
In  comparisou,  how  insignificant  are  the  out- 
standing obligations  of  the  irrigation  districts  of 
California,  which  only  need  the  support  of  the 
Federal  courts  to  make  them  good,  covering  as 
they  do  lands  sufficient  to  make  them  absolute 
security.  That  there  have  been  abuses  in  public 
corporations  of  all  kinds — counties,  cities,  towns 
and  districts — is  notorious  ;  but  that  is  no  reason 
for  destroying  them.  Said  Chief  Jusitce  Waite 
in  Mimn  vs.  Illinois^  94  U.  S.,  112  :  "  We  know 
that  this  power  may  be  abused ;  but  that  is  not 
an  argument  against  its  existence.  For  protec- 
tion against  abuse  the  people  must  resort  to  the 
polls,  not  to  the  courts." 

If  there  be  imperfections  in  the  irrigation 
laws  of  California — and  doubtless  there  are — 
they  can  be  amended.  The  law  has  been  in 
operation  now  more  than  seven  years.  Three 
sessions  of  the  Legislature  have  been  held  since 
its  enactment,  and  though  the  State  has  passed 
through  the  worst  panic  ever  before  known,  the 
law  has  stood  the  test  so  well  that  no  one  has 
even  proposed  to  repeal  it.  This  is  a  sufficient 
answer  to  those  who  denounce  it  as  oppressive. 

The  opposition  to  it  comes  from  those  who 
hold  lands  for  speculative  purposes  and  do  not 
wish  to  improve  them.  The  State  certainly  has 
a  right  to  adopt  a  policy  which  will  enable  the 


71 


people  who  desire  to  build  homes  to  own  the 
water  with  which  to  irrigate  their  lands  and  thus 
be  free  from  the  perpetual  tribute  which  would 
follow  the  ownership  of  the  water  by  private 
corporations.  After  the  bonded  indebtedness  is 
paid  off,  the  cost  of  water  under  the  district  sys- 
tem will  be  merely  nominal. 

To  hold  this  law  unconstitutional,  and  thus 
destroy  investments  already  made  aggregating 
millions  of  dollars  in  value  —  declare  invalid 
bonds  issued  and  purchased  upon  the  faith  of 
numerous  decisions  of  the  State  Supreme  Court 
— would  not  onl}'  be  unprecedented,  but  would 
so  impair  confidence  in  that  court  that  hereafter 
uo  bonds  in  this  State  of  a  public  character 
could  be  sold  until  after  their  approval  by  the 
Supreme  Court  of  the  United  States. 

Such  a  result  would  be  far  more  disastrous 
than  any  possible  abuse  of  the  law.  People  who 
have  made  investments  under  those  decisions  are 
certainl}'  entitled  to  as  much  consideration  as 
those  who  Ijuy  lands  in  the  vState  charged  with 
the  knowledge,  as  the}'  are,  that  they  take  the 
title  subject  to  the  right  of  the  State  to  enact  and 
enforce  such   a  policy  of  internal  improvements. 

Respectfully, 

JAMES  A.  WAYMIRIv. 


7  3  5  ^ 


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